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BC DISEASE NEWS
A MONTHLY DISEASE UPDATE
May 2017 Edition
PAGE | 2
Welcome
Welcome to this month’s edition of BC Disease News, our monthly disease
update in which you will find news, legislative updates, case law
developments and extensive features on everything from the world of
insurance/disease and defendant occupational disease litigation.
This month, we discuss the Civil Justice Council’s response to the 12 week
Department of Health (DoH) consultation on fixed costs in clinical negligence
cases up to the value of £25,000 fixed costs. Moreover, we consider the future
of the Personal Injury discount rate, considering the effects of a general
election on further reform, as well as industrial insight provided in responses
to Liz Truss’ consultation paper, perhaps suggesting de-politicisation. In the
world of science, we analyse the latest in pioneering immunotherapy cancer
therapy techniques, which are currently being used to treat patients in a
Southampton University-led study.
Additionally, we review the case of Godfrey Morgan Solicitors v Armes [2017]
EWCA Civ 323, which conveys the difficulties that claimants may face when
there is uncertainty as to the legal identity of the party being pursued and
limitation restricts the scope for amendment of the Claim Form. The judge, in
this instance, deemed that the claimant could not ‘substitute in the
alternative’. What is more, in Findcharm Ltd v Churchill Group Ltd [2017] EWHC
1109 (TCC), on the topic of costs budgeting, Coulson J emphasised the duty
of parties to civil litigation that ‘...the Precedent R process is carefully and
properly adhered to...’ Recording unjustifiably low figures, in the hope that
the court also provides a low valued assessment, will therefore amount to an
‘abuse of the costs budgeting process’.
Finally, this month, we complete our Mesothelioma Series, concluding with a
Part 11, a practical, worked example of a mesothelioma claim. Continuing
this asbestos-based theme, we review 2 of BC Legal’s latest trial successes in
mesothelioma and pleural thickening claims, while also releasing our
Mesothelioma Breach of Duty (here) and PSLA (here) Guides.
We would like to take this opportunity to wish our warmest regards to all
members of IRLA and invite you to contact the directors here at BC Legal,
Boris Cetnik or Charlotte Owen with any comments, feedback or questions
that you may have.
PAGE | 3
Contents
News
Fixed Fees in Clinical Negligence Cases?
MedCo Imposes Sanctions on 134 Users
Pesticides, Biocides and Thyroid Cancer
Nanoparticles Increase Risk of Cardiovascular Disease
CJC Weigh in on Clinical Negligence Fixed Fees Debate
Slater and Gordon: Update on Debt and Quindell
Johnson & Johnson Ordered to Pay $110 Million in Talc and Cancer Claim
Potential Drug Treatment for Hearing Loss
New Mechanism for ‘Hidden Hearing Loss’ Suggested
Update Following Latest Discount Rate Consultation Paper
Serious Fraud Office Step Up Probe of Quindell
Fibromyalgia Research Links Disorder with Hearing Loss
How Does the Menopause Affect Hearing Acuity?
Launch of Mesothelioma Breach of Duty Guide
Beware of Agreeing Costs Budgets by Default
De-politicisation of the Discount Rate?
Will the Prison and Courts Bill Resurface?
Jackson LJ Sceptical Over Fixed Costs in Clinical Negligence Claims
‘Hot-Tubbing’ Should Not be the Default Position?
Immunotherapy Use in Early-Stage Lung Cancer
Updated Mesothelioma PSLA Guide
Case Law
Court of Appeal Find Obsolete Miners’ Law Firm Negligent: Perry v Raleys Solicitors [2017] EWCA Civ 314
Ongoing Symptoms and Video Evidence: Karapetianas v Kent and Sussex Loft Conversions Ltd [2017] EWHC 859 (QB)
Amending the Claim Form: ‘Substitution in the Alternative’: Godfrey Morgan Solicitors v Armes [2017] EWCA Civ 323
Liability In Mesothelioma Claims: Bussey v Anglia Heating Ltd (2017)
Cost Budgeting is Not a Game: Findcharm Ltd v Churchill Group Ltd [2017] EWHC 1109 (TCC)
Guidance on Striking Out Particulars of Claim: Kaplan v Super PCS LLP [2017] EWHC 1165 (Ch)
Features
Mesothelioma Series: Part 10: Factories Act 1961/1937 – S.63 – ‘Reasonably Practicable’ and ‘Practicable’
Mesothelioma Series: Part 11: Practical Handling of Mesothelioma Claims
Breach of Duty in Pleural Thickening Claim: McGowan (deceased) v AMEC Buildings Limited
PAGE | 4
Fixed Fees in Clinical
Negligence Cases?
In January of this year, the Government
published its plans to introduce fixed
recoverable costs in clinical negligence
cases worth up to £25,000, as opposed to
the previous recommendation of £250,000.
BC Disease News discussed this in edition
171 (here).
Calculations convey that, within the
bracket of claims valued between £1,000
and £25,000 (representing 60% of the total
number of NHS settled claims), costs
recovered by claimant solicitors were 220%
higher than the compensatory payment
awarded to victims. This DoH proposal,
therefore, was made in reaction to £45
million, per year, in potential savings, which
would be generated by alleviating
excessive fiscal disproportionality and time
taken to settle.1
This was irrespective of lobbying by the Law
Society, the Association of Personal Injury
Lawyers (APIL), the Society of Clinical Injury
Lawyers and Action against Medical
Accidents. On 2 May 2017, the 12 week
Department of Health (DoH) consultation on
the introduction of fixed fees, ended.2
APIL has now responded to the consultation
and has questioned the benefits of fixed
costs in a process that they believe to be
inherently ‘dysfunctional’. Further, they
argue that its implementation will do
nothing to speed up the ‘ludicrously long
waiting times for the recovery of medical
records, or arduous expert reports’ – factors
which have, in its opinion, contributed to
the hike in litigation fees.
Depending upon the legitimacy of
claimant solicitor fees accrued, it is feared
that the most vulnerable claimants, who
often pursue complex, low value claims,
may not receive adequate access to
justice if the proposal goes ahead as
planned. To protect victims of ‘fatalities,
claimants with a short life expectancy,
potential breaches of the Human Rights Act
and cases with multiple claimants or
defendants’, as well as ‘people with
disabilities and mental health issues, the
over 65s and prisoners’ it has been
requested that they are excluded from any
new fixed costs regime.
Indeed, fixed costs are a hot topic of
conversation in the current legal sphere, as
LJ Jackson continues to collate his final
‘progress report’ on fixed recoverable costs
outside of the fast track, pending release in
July. In the interim period, a voluntary cost
capping pilot has been announced for
mercantile courts (limited to claims up to
£250,000) and is anticipated to provide
vital feedback.
However, in recent months, the appetite for
a new regime of fixed recoverable costs
has weakened, as confidence in costs
budgeting has grown. Reflecting this view,
Agata Usewicz, head of medical
negligence at Hodge Jones & Allen has
stated:
‘As a consequence of the Jackson reforms,
lawyers’ fees are already tightly controlled,
budgeted, capped and limited … Costs
already have to be ‘reasonable and
proportionate’ before they are paid by the
insurer or NHS and the courts rightly already
hold the power to reduce any bill found to
be excessive … To seek to introduce further
and somewhat draconian changes without
waiting to see whether the introduction of
costs budgeting will lead to the necessary
improvement must, from any angle, be
considered to be somewhat misguided
and misconceived’.3
Alleged misconceptions referred to,
include suggestions that ‘expert evidence
in cases worth up to £25,000 can be
obtained for under £1,200 and that
particulars of claim in complex cases can
be drafted by junior fee earners’.
Nevertheless, APIL were not adverse to the
idea of narrowly adopted fixed fees, where
defendants admit to liability in their letter of
response. In this instance, an abbreviated
expert report could be compiled in
advance to arrange an early settlement.
Evidently, costs continue to be an area of
conflict and legal uncertainty, so we will
continue to report on any further
procedural progress in due course.
MedCo Imposes
Sanctions on 134 Users
MedCo, the scheme created to assist
claimant solicitors with obtaining legitimate
whiplash diagnoses, have reported on their
annual progress since 31 March 2016.
Published last week, they disclosed that 337
warnings had been issued to its members
(Medical Reporting Organisations, Direct
Medical Experts and ‘Authorised Users’). As
a result, this saw the suspension of 235
operating parties, of which only 84 were
reinstated. Hence, 134 user agreements
have been terminated.4
Reasons given for these sanctions were as
follows:
Members were circumventing the
search selection process.
Members were influencing medical
expert opinions on diagnosis and/or
prognosis.
Members were undertaking medical
examinations in inappropriate
circumstances.
Members were increasing the market
share of instructions, breaching
Government policy.
Members were failing to upload case
data.
Due to industrial reforms, such as the
change in small claims limit for RTA claims
(from £1,000 to £5,000), the sector is likely
to see a large influx of litigants in person,
given the non-profitable nature of litigation
outside of any recoverable costs regime,
save for exceptional cases. We discussed
an example of such an exception in last
week’s edition of BC Disease News (here),
where the Court of Appeal in Dammermann
v Lanyon Bowdler LLP5 imposed an order for
recoverable costs on ‘a party who has
behaved unreasonably’, in accordance
with the powers contained within CPR
27.14(2) subsections.
News
PAGE | 5
However, the MedCo scheme, in its current
format, is not fit for the purpose of individual
litigants approaching MedCo directly for
expert medical advice, especially in light
of recent sanctions. As a result, a
spokesperson for the organisation has
proclaimed:
‘Significant changes to MedCo processes
will be necessary’.6
Therefore, a review of MedCo is
foreseeable, so to accommodate and
secure the needs of market forecasts. We
may see an increase in the monitoring of
member behaviours; better identification of
trends that increase prognosis periods and
artificially inflate damages; and a review of
the portal’s corporate constitution, with a
view to providing representatives from
claims management companies and
litigants in person.
Pesticides, Biocides and
Thyroid Cancer
A newly published study, carried out by
Zeng et al at the Yale School of Medicine,
has aimed to investigate the associations
between occupational exposure to
biocides and pesticides and risk of thyroid
cancer.7
Pesticides are a diverse group of chemicals
used in agricultural, commercial and home
settings to control insects, fungi and weeds.
Biocides are chemicals used to disinfect,
deodorise, sterilise and sanitise. Prior to this
study, only a small number of studies have
investigated exposure to pesticides in
relation to thyroid cancer and have
reached suggestive but inconsistent
results,8 and no study has investigated
exposure specifically to biocides and
thyroid cancer.
According to the International Agency for
Research on Cancer (IARC), carcinogenic
agents for thyroid cancer, with sufficient
evidence in humans, are sources of ionising
radiation.9 Some studies have found
increases in thyroid cancer risk among
those in medical professions with exposure
to ionising radiation (such as X-rays). More
generic healthcare occupations, such as
laboratory workers that may or may not be
exposed to radiation, were often, but not
consistently, associated with thyroid cancer
risk.10
Anomalies of the thyroid gland, other
than cancer, have previously been
associated with many chemicals and
solvents found in the workplace.
The study carried out by Zeng et al, was a
case-control study, in which 462 thyroid
cancer patients were compared with 498
control participants. A questionnaire was
used to collect information on
demographics, medical history, smoking
and alcohol consumption, physical
activity, lifetime occupational history and
diet. Participants were asked to report all
jobs held for 1 year or longer during their
lifetime. Exposure to biocides and
pesticides was assessed using a ‘job
exposure matrix’, in which the amount of
exposure was estimated based on job titles,
tasks, and industry types. The three most
frequent jobs linked to biocides were:
health diagnosing and treating
practitioners; nursing, psychiatric and
home health aides; and building cleaning
workers. The three most frequent jobs linked
to pesticides were: farmers, ranchers and
other agricultural managers; postal service
workers; and first-line supervisors of
landscaping, lawn service and grounds
keeping workers.
Individuals who had ever been exposed to
biocides had an increased risk of thyroid
cancer with an odds ratio of 1.65, meaning
that they were 65 % more likely to develop
thyroid cancer. Ever being exposed was
defined as having held at least one job with
a probability of exposure of at least 30 %
for at least one year. The highest risk was
observed among those who had high
cumulative probability of exposure and
medium cumulative intensity of exposure.
Similar associations were found for different
types of thyroid cancers, and a stronger
association was found for tumours no larger
than 1 cm in size. Though few past studies
have examined the direct association
between biocides and thyroid cancer,
several have reported an association with
particular occupations that could involve
exposure to biocides, such as construction
carpenters/joiners, workers in the canning
and preserving industry and healthcare
professionals such as dentists, pharmacists,
physicians and nurses. The findings of the
present study suggest an increased risk in
occupations exposed to biocides, which
offers some evidence that the earlier
findings may be related to biocide
exposure. The researchers note that the
underlying biological mechanisms linking
biocides and risk of thyroid cancer are
unclear, though some animal studies have
found that biocides can alter thyroid
hormones (though the relationship between
thyroid hormones and thyroid cancer is also
uncertain).
No significant association was observed for
ever being exposed to pesticides. Because
the number of pesticide-exposed cases
was small, further detailed analysis by
probability and intensity of exposure was
not explored. There was an increased risk
among low-exposed women, but it was not
statistically significant. Though this result
may have occurred by chance, or by
misclassification of exposure, it is also
possible that there is an unknown
carcinogen specific to the low-exposure
occupations.
This study had some limitations. Cases were
significantly younger than controls, and
cases were more likely to have benign
thyroid disease than controls. There are
limitations to the job exposure matrix, and it
was not possible to investigate individual
pesticides or biocides. Future evaluations
of the relationships between exposure to
biocides and pesticides and thyroid
cancer are warranted, to increase the
knowledge of whether or not those working
with cleaning products and/or pesticides
are likely to be at increased risk.
Nanoparticles Increase
Risk of Cardiovascular
Disease
Herein lies the main issue with current
legislation, since the EU’s legal limit on
PAGE | 6
Moreover, in last week’s edition, we
discussed the obstacles to justice that may
surface as a result of the change in small
claims limit for RTA claims to £5,000,
plunging many into a situation where costs
are not recoverable and forcing individuals
stand as litigants in person. Schemes, such
as MedCo, are not designed for this.
Conversely, with fixed fees, the CJC
suggests that MedCo experts might ‘refuse
to take [often necessary] instructions in
these cases’ and shift their focus onto
higher-value claims for ‘adequate
remuneration’. The impact of this could be
even greater in ‘acute areas of
specialisation’ or where ‘more than one
expert [is] to be instructed’. Further, the CJC
are also against the ‘imposition of a flat cap
for all expert witnesses’.
Considerations given to consultations on
both clinical negligence fixed fees and the
RTA small claims limit have, therefore,
recognised certain important factors
beneficial to those instructed by claimants,
but will still to protect them against
deterrents which will hinder the functionality
of future schemes and allegedly
‘disadvantage’ those seeking justice.
The CJC have requested a ‘re-think’ on pre-
action protocol and urged the regime to
be ‘structured and financed properly’,
before they can pledge support for the
principle of fixed costs in clinical
negligence cases.
Slater and Gordon:
Update on Debt and
Quindell
It has been several weeks since we last
reviewed the financial predicament of
Slater and Gordon, the Australian Stock
Exchange listed Law Firm.
In our previous update (here), we disclosed
that 94% of S&G bank debts, totalling £458
million (AU$738 million), had been sold to
‘secondary debt buyers’ by their original
lenders, such as National Australia Bank,
Westpac, RBS and Barclays. Last month, it
airborne particles smaller than 2.5
micrometres is measured in ‘mass per m3’
and not the total number of particles. When
dealing with ultrafine particles, which are
on the rise, it could be argued that the
emphasis should be on frequency rather
than mass.
Future planned research will seek to delve
deeper into the path of nanoparticles into
the brain, in order to discover potential links
with asthma, dementia, Alzheimer’s and
Parkinson’s.11
We have previously discussed the effects of
nanoparticles and potential occupational
exposure in edition 121 of BC Disease News
in which we pointed out that the use of
nanotechnology is increasing rapidly
across a wide range of industries, including
medicine, agriculture and engineering.
Though nanotechnology may provide
novel and new solutions to problems, it may
bring new types of risk to the workforce. This
most recent study suggests that
nanoparticles may travel through the body
in previously unknown ways.
In April, ACS Nano, a scientific journal,
published the findings of a joint study,
carried out by the University of Edinburgh
and the Netherlands National Institute for
Public Health and the Environment.12
Funded by The British Heart Foundation, the
study sought to establish how nanoparticles
in diesel fuel are linked to cardiovascular
disease.
The experimental subjects, who took part in
the study published last month, included 14
healthy volunteers, 12 surgical patients and
several mouse models. Each of them
commenced 2 hours of exercise, while
breathing in gold nanoparticles, which are
safely used in medical imaging and drug
delivery. Post-exposure, researchers
detected gold traces in urine and blood,
for most participants, within 15 minutes. For
some, particles remained in their bodies for
3 months.13
Ultimately, this proves that, upon inhalation,
nanoparticles pass through the lungs and
enter the bloodstream. Subsequently, they
travel to other organs and accumulate,
often at inflamed vascular sites, e.g. where
carotid plaques exist, which increases a
person’s susceptibility to contract
cardiovascular disease.
Dr Mark Miller, the Senior Research Scientist
who led the study, has since stated:
‘Only a very small proportion of inhaled
particles will do this, however … even this
small number of particles might have
serious consequences.’14
CJC Weigh in on
Clinical Negligence
Fixed Fees Debate
A week ago, we reported on the closing of
the 12 week Department of Health (DoH)
consultation on fixed costs in clinical
negligence cases. This has been met with
lobbying by industrial bodies, like the
Association of Personal Injury Lawyers (APIL),
who are opposed to the changes
proposed, predominantly on the basis that,
if enacted, the most vulnerable patients
would face restricted ‘access to justice’.
The Civil Justice Council (CJC) are the latest
organisation to voice their critique of the
Government’s plans to implement fixed
costs up to the value of £25,000.15
They
adopt the same stance as APIL, foreseeing
that the position ‘will prevent many cases
being brought’. Officially, the CJC have
stated that the paper:
‘... whilst recognising the need to ensure
that claimant lawyers are not deterred from
taking on low-value cases, fails to
adequately recognise the need to ensure
that experts, critical in this type of litigation,
are not deterred.’
Paying respect to Jackson LJ’s ongoing
‘progress report’ on fixed recoverable costs
outside of the fast track, the CJC has
suggested that the DoH ‘pool’ and ‘analyse’
both consultations ‘before bringing forward
finalised reform proposals’, which would
seem to be a plea for consistency and
transparency.
PAGE | 7
was announced that the new lenders
acquired stock for around £0.13 (AU$0.22)
per share in a ‘debt-for-equity’ swap.
More recently, just last week, investors were
notified by the Firm that a capital injection
of £22.7 million, which equates to AU$40
million, will be borrowed from the new
lenders and used to fund the business over
the course of the next 3 years, in order to
provide assistance during the period of
‘solvent restructure’.16
This figure is close to
net losses, published in their latest interim
results. According to officials, ‘a further
update will be provided in the coming
weeks’, which BC Disease News will report
on in due course.
Then, on Wednesday 11th
May, Watchstone
Group PLC, formerly known as Quindell,
notified the London Stock Exchange that
S&G plan to issue proceedings against
them for £600 million by the end of May.
Accordingly, their letter of intention stated
that:
‘… but for fraudulent misrepresentation it
would not have entered into the transaction
at all’.17
S&G’s acquisition of Quindell’s professional
services group in 2015, for an estimated
£637 million, has been persistently featured
in many BC Disease News editions, as the
large-scale deal failed to broker the
success anticipated, to the point where
their shares are now ‘almost worthless’.
Watchstone has urged S&G to disclose
‘continuously declined’ evidence, in their
possession, that is relevant to the merits and
quantum of its misrepresentation
accusation, as they believe the claim to be
‘groundless’ and would oppose it
‘robustly’.18
Nevertheless, S&G remain
confident that at least £53 million in
purchase price warranties, held in an
escrow account, are recoverable, due to
unfulfilled conditions.
6 month overview of Slater and Gordon
equities (Financial Times):
The current S&G share price currently sits at just £0.06 (AU$0.105), which is a slight
improvement since the lowest ever value recorded at the beginning of March.
Johnson & Johnson Ordered to Pay $110 Million in
Talc and Cancer Claim
A US court has ordered Johnson & Johnson to pay more than $110 million (£85 million) to a
woman who claims she developed ovarian cancer after using its talcum powder.19
The 62-
year-old from Missouri had used the product for 40 years and developed ovarian cancer,
which has spread to her liver. Prosecutors argued that the company did not adequately
warn about the cancer risks associated with the product. Johnson & Johnson says it will
appeal.20
There have been around 2,400 claims against Johnson & Johnson over its talc-based
products, and this verdict is the largest so far. The amount awarded included $4.5 million
in compensatory damages and $105 million in punitive damages. This follows a case from
last February in which $72 million was paid, a jury verdict last May in which a woman was
awarded more than $55 million,21
and a third in October for $67.5 million. In March this
year, Johnson & Johnson won a case by a Tennessee woman who was diagnosed with
ovarian cancer in 2013, after using baby powder for 36 years.22
A New Jersey state court
judge last year threw out two talc cases set for trial, finding inadequate scientific support
for the claims.23
In a statement on last week’s verdict, Johnson & Johnson said:
‘We deeply sympathise with the women and families impacted by ovarian cancer. We will
begin the appeals process following today’s verdict and believe a jury decision in our favor
in St. Louis in March and the dismissal of two cases in New Jersey in September 2016 by a
state court judge who ruled that plaintiffs’ scientific experts could not adequately support
their theories that talcum powder causes ovarian cancer, further highlight the lack of
credible scientific evidence behind plaintiffs’ allegations. We are preparing for additional
trials this year and we will continue to defend the safety of Johnson’s Baby Powder’.
So what does the current evidence indicate regarding a link between talc products and
ovarian cancer? Talc is a mineral that occurs naturally in the earth, and is mined for use in
a range of products. In its natural form, it can be mixed with asbestos, however, asbestos-
free talc has been used in baby powder and cosmetics since the 1970s. Studies on
asbestos-free talc and cancer have produced contradictory results.
PAGE | 8
In 2006, the International Agency for
Research on Cancer (IARC) classified
asbestos-free talc used on the genitals as
‘possibly carcinogenic to humans’, and
found that there was limited evidence in
humans for the carcinogenicity of use of
talc-based body powder on the genitals.24
There was also inadequate evidence in
humans for the carcinogenicity of inhaled
talc, and the group found little or
inconsistent evidence of an increased risk
of cancer in the studies of workers
occupationally exposed to talc.
A 2015 study received media coverage
following the Johnson & Johnson case in
February last year.25
This case-control study
compared 2,041 cases of ovarian cancer
with 2,100 controls.26
Cases were asked,
after their diagnosis, to estimate their use of
talc, which may have introduced recall
bias, whereby cases are inclined to
overestimate their exposure. The use of talc
on the genitals was associated with a 33 %
increased risk of ovarian cancer. Some
subtypes of ovarian cancer were more
likely to be associated with talc. There were
also increased risks with use of talc and
hormone therapy. Other studies published
since the IARC classification have found
possible links between talc and ovarian
cancer,27
though a large cohort study from
the Women’s Health Initiative found no
association.28
A 2008 meta-analysis, in
which results from 20 studies were pooled,
found an increased risk of 35 % among talc
users.29
Another meta-analysis, published in
January this year, found a weak but
statistically significant association between
genital use of talc and ovarian cancer,
from analysis of 24 case-control and 3
cohort studies.30
The overall increase in risk
was 22 %. An association was detected for
only one subtype of ovarian cancer, known
as serous carcinoma. There was no trend in
risk with either duration or frequency of talc
use. The differences in results in studies with
different designs and the lack of a trend for
duration or frequency of use mean that
these findings cannot be interpreted as a
causal association.
The charity Ovacome, which provides
advice and support to women with ovarian
cancer, says that there is no definitive
evidence of a link with talc, and that the
worst-case scenario is that using talc
increases the risk of cancer by a third.31
It
adds that, ‘Ovarian cancer is a rare
disease, and increasing a small risk by a
third still gives a small risk’, and, ‘even if talc
does increase the risk slightly, very few
women who use talc will ever get ovarian
cancer. Also, if someone has ovarian
cancer and used talc, it seems unlikely that
using talc was the reason they developed
the cancer’.
Baby powder is a cosmetic, which means
that it does not need to be approved by the
Food and Drug Administration. Johnson &
Johnson baby powder carries a warning,
cautioning against inhalation and noting
that the powder is for external use only. In
the case won by Johnson & Johnson in
March, the majority of jurors were not
convinced by the evidence linking genital
usage of talcum powder products to an
increased risk of ovarian cancer, and
believed that the evidence was insufficient
to require strengthening of the product’s
warnings.32
A lawyer for the claimant
suggested that the jury was not convinced
of a link to his client’s specific form of
ovarian cancer. In the latest case, one of
the jurors has been quoted as saying that
the figure of $105 million for punitive
damages was derived from a formula
starting with the number of years since the
IARC classified talc as a possible
carcinogen (in 2006).33
The claimant
testified that she would not have used the
products had they carried any warnings
about cancer risks.34
In the case from last
February, in which Johnson and Johnson
were ordered to pay $72 million to the
family of a woman who died from ovarian
cancer, the trial reportedly saw an internal
memo from a medical consultant
employed by Johnson & Johnson that
suggested that ‘anybody who denies [the]
risks’ between ‘hygienic’ talc use and
ovarian cancer would be publicly
perceived in the same light as those who
denied a link between smoking cigarettes
and cancer.35
More cases against Johnson & Johnson will
go to trial this year, and it is likely that new
studies on this topic will continue to be
published, as the existing data are
inconsistent. Johnson and Johnson are also
appealing the cases they have lost. The
association between talc and ovarian
cancer and the rulings in the new cases
and appeals will continue to be in the news
in the near future.
Potential Drug
Treatment for Hearing
Loss
A team of researchers from the
Massachusetts Institute of Technology (MIT),
Brigham and Women’s Hospital,
Massachusetts Eye and Ear Infirmary and
Harvard Stem Cell Institute, have
developed an approach to replace
damaged hair cells in the cochlea of the
inner ear.36
This may be a step towards a
treatment that can restore hearing that has
been lost.
The cochlea contains about 15,000 hair
cells, which receive and translate sounds
into signals that are sent to the brain. Hair
cells can be lost due to ageing, noise and
other causes, resulting in hearing loss
characterised by elevated audiometric
thresholds. In other words, the listener with
loss of hair cells cannot hear quieter
sounds. Once damaged, hair cells cannot
regrow.
The researchers have discovered a
combination of drugs that expand the
population of another type of cell found in
the cochlea, known as supporting cells,
and induces them to become hair cells.
They exposed cells from a mouse cochlea,
grown in a lab dish, to molecules that
stimulate a cellular pathway that cause the
cells to multiply rapidly. The cells were, at
the same time, exposed to molecules that
activate another pathway, to prevent them
from turning into hair cells too soon. Once
they had a large pool of immature cells,
another set of molecules were added that
provoked the cells to become mature hair
cells. This procedure generated around 60
times more mature hair cells that previous
techniques.
PAGE | 9
This approach also worked in an intact
mouse cochlea removed from the body. In
the intact cochlea experiment, the
researchers did not need to add the
second set of molecules, because when
the immature cells formed, they were
naturally exposed to signals that stimulated
them to become mature hair cells. One of
the researchers, Jeffrey Karp, an associate
professor of medicine at Brigham and
Women’s Hospital and Harvard Medical
School, said of the intact cochlea
experiment:
‘We only need to promote proliferation of
these supporting cells, and then the natural
signalling cascade that exists in the body
will drive a portion of those cells to become
hair cells’. 37
A test on a sample of human inner ear tissue
has also led to the production of hair cells.
As such, the researchers believe that this
treatment could be easy to administer to
human patients, because it involves a
simple exposure to drugs. The drugs could
be injected into the middle ear, from which
they would travel into the inner ear. Some
of the researchers have started a company
called Frequency Therapeutics,38
which
has licensed the technology and plans to
begin testing in human patients within 18
months. The concept of using small
molecules to promote cell regeneration
may also be applicable to other tissue and
organ systems.
New Mechanism for
‘Hidden Hearing Loss’
Suggested
A recent study has offered further insight
into the phenomenon of ‘hidden hearing
loss’. The term ‘hidden hearing loss’ (HHL)
describes the phenomenon in which a
listener’s audiogram is normal, but they
report difficulty with distinguishing speech in
noise.39
Hidden hearing loss is also known
as obscure auditory dysfunction (OAD) and
King-Kopetzky syndrome. We have covered
hidden hearing loss in a feature located in
issue 113 of BC Disease News and it was
mentioned in issue 157 (here).
It has previously been proposed that HHL
may result from noise exposure, though
there is little direct evidence for this effect
in humans.40
Unlike hearing loss resulting in
increased thresholds, where the hair cells
are lost, it has been suggested that HHL is
caused by damage, or loss, of the
synapses that connect the hair cells to the
auditory nerve fibres.
In a quiet audiology testing room, only a
few synapses are required to detect
sounds, but in a noisy environment, specific
synapses are required. Thus, loss of the
synapses can cause the listener to have
normal audiometric thresholds, but
difficulty hearing speech in noise.
Animal studies have shown that certain
nerve fibres, which encode information at
medium to high sound levels, and in
background noise, may be damaged,
even though the animals can still hear quiet
sounds.41
42
The new study proposes an additional
cellular mechanism for HHL. Nerve fibres, or
axons, are surrounded by a sheath, made
of myelin, produced by cells known as
Schwann cells. The function of Schwann
cells is to support, maintain and insulate the
nerve fibres. The results from this study
suggest that loss of Schwann cells, which
can regenerate and rebuild the myelin
sheath, results in permanent damage to
structures in the auditory nerve, known as
heminodes.
The researchers used genetic tools to
induce the loss of myelin in the auditory
nerve of mice. Although the myelin
regenerated within a few weeks, the mice
developed a permanent hearing loss,
which was observed by testing of the
function of the auditory nerve. Even after
the myelin regenerated, damage to the
heminodes remained.
This newly proposed cause of hidden
hearing loss could occur in individuals who
also have HHL caused by noise-induced
synapse loss, and the two types of hearing
loss could be additive. To test whether the
two forms of HHL interact, mice that had
undergone demyelination (loss of the
myelin sheath) and their control
counterparts were subjected to noise
exposure at the levels that have caused
synapse loss in other studies. Remarkably,
noise exposure induced further decrease in
auditory nerve function beyond the
decrease produced by demyelination,
and the magnitude of the decrease in
function was the same in mice that had no
demyelination.
These findings indicate that exposure to
noise sufficient to cause synapse damage
leads to additional auditory loss, even in
mice that already have HHL due to
Schwann cell loss.
The article makes no mention of Schwann
cell loss being caused by noise. The causes
of Schwann cell loss are generally diseases;
Charcot-Marie-Tooth disease and Guillain-
Barre syndrome (GBS) are neuropathies
involving Schwann cells. Thus, the findings
from this study might offer an insight into the
causes of auditory deficits in patients that
have recovered from such diseases. These
findings may also be of use in the
development of new treatments for hearing
loss.
These findings offer further evidence for the
existence of HHL, and evidence that there
are two distinct mechanisms, which are
additive. One of these mechanisms,
synapse damage, is shown in mice to be
caused by noise. The medical history of a
claimant with HHL should be obtained, so
that the likelihood of HHL being caused by
noise (synapse loss), or by disease
(Schwann cell loss), can be considered.
However, there is still little evidence of HHL,
caused by noise, in humans.
Update Following Latest
Discount Rate
Consultation Paper
On 11 May, the government consultation:
‘The Personal Injury Discount Rate. How it
PAGE | 10
should be set in future’, closed.43
We
announced its launch in edition 179 of
BCDN (here). Over the past week, various
bodies have responded to the consultation
by stating their opinions on the present rate,
which assesses the value of lump sum
damages awards for future financial loss in
Personal Injury cases. From March of 2017,
the new rate was introduced by Lord
Chancellor, Elizabeth Truss, representing a
3.25% decrease to (-)0.75%.
As soon as the current rate was announced,
the government faced lobbying from the
insurance industry to reconsider the severity
of the reduction, but claimant Law firms
have urged ministers not to ‘pander’ to their
demands.
Nevertheless, shock over the magnitude of
change has seen insurance profits suffer,
with the UK arms of Ageas and Allianz
recently recording figures of £0.8 million
(96% less than £21 million recorded in Q1
of 2016) and £37.5 million (21% less than
£47.4 million recorded in Q1 of 2016) in
profit, during the first business quarter,
respectively.44
45
This is demonstrative of the
fact that the insurance and reinsurance
market is having to bolster its reserves to
cope with the financial implications of new
legislation. Further, the British Insurance
Brokers’ Association (BIBA) have expressed
fears of ‘upward pressure on customers’
premiums’ and concerns over ‘reduced
capacity in the motor insurance market’.
What is more, the Medical Defence Union
(MDU) suggests that the new rate will have
‘profound economic repercussions’ on the
cost of clinical negligence claims, NHS
services and GP indemnity fees.46
According to the Union’s CEO, Dr Christine
Tomkins, figures suggest that the Treasury
will have to source an additional £5.9 billion
during the first 3 years to cover NHS costs in
isolation, on account of the fact that 'a
claim that would have settled for £8.4m on
the previous discount rate would now settle
for £17.5m'. As a result, the MDU has
stressed that amendments made to the
Damages Act 1996 are ‘not fit for
purpose’.47
The same position has been echoed by
Professor Helen Stokes-Lampard, chair of
the Royal College of General Practitioners
(RCGP), who emphasised that:
'Every GP has the right to provide care to
their patients, safe in the knowledge that
they are protected by their insurance.
Indemnity cover is already a significant
financial burden on GPs so this potential
hike in costs will come as a serious blow and
cause great anxiety.'48
The overriding motive behind change was
to account for the UK’s low interest rate.
Presently, the discount rate, otherwise
known as the Ogden rate, is a reflection of
the yield that can be obtained by way of
investment in Government Linked
Investment Bonds (gilts). Thus, when a
negative yield was calculated, a negative
discount rate was adopted in order to
assure victims of serious injuries that they
would not be undercompensated.
Critics of the new rate have claimed that
assumptions made about the nature of
claimant investments are incorrect and fail
to recognise low-risk, mixed portfolio assets
as an alternative venture, which would
yield far higher than gilts.
However, the Association of Personal Injury
Lawyers (APIL) has praised the current
discount rate formula, given that it removes
any onus placed on severely injured
individuals to make high risk investments
and still allows them to benefit fully from the
compensation awarded to them. Warning
the Government against the influence of
protest, APIL has said that ‘the insurance
industry must not be allowed to shirk its
responsibilities’.49
Nevertheless, BIBA, in their consultation
response, contends that ‘it is very unlikely
that a prudent investor with appropriate
advice would receive a negative return on
investment’.
A common idea shared by institutions
staunchly opposed to the new rate, is the
creation of an ‘independent panel of
experts’, including ‘insurers, claimant
lawyer representatives, independent
advisers and actuarial firms’, with a view to
considering any future proposals to alter
the discount rate, before the Secretary of
State can intervene by casting their
decision.50
The Association of British Insurers (ABI) has
pledged to provide 100% compensation,
but has requested a break from gilts as the
asset which impacts upon the discount rate
and, in turn, the size of the initial lump sum.
Director of General Insurance Policy, James
Dalton, has stated:
‘Retaining the status quo is not an option –
it is essential that the new government
changes the framework to ensure we have
a system that is fit for purpose for claimants,
insurance paying customers and
compensators...’
Moreover, the ABI has endorsed an
example approach taken in Ontario,
Canada, where a stepped dual rate
applies. They believe that, if this system was
emulated in the UK, it would provide a more
accurate representation of differing
investment periods. Subsequently, lower
returns would be collected by claimants
with short-term needs and higher returns
would be deposited by long-term investing
claimants. Specifically, in this Canadian
province, for the first 15 years, a short-term
rate applies, which varies annually
depending upon return on yields, after
which a fixed rate of 2.5% is imposed.51
Alternatively, as a way of minimising
claimant investment risk, periodical
payment orders could be recommended in
place of lump sum orders, where the risk
shifts to the compensator.52
Elsewhere, the International Underwriting
Association (IUA) has called for ‘regular’
review of the rate at intervals between 1
and 3 years by a ‘politically accountable
minister’, instead of requiring governmental
discretion, in hope of easing market
volatility.53
These responses to the consultation are
currently being analysed by the
Government. Of course, the dissolution of
parliament during the General Election
period has stalled the progress therefore,
the discount rate will remain unchanged for
now. However, we will continue to report on
any progress.
PAGE | 11
Serious Fraud Office
Step Up Probe of
Quindell
We previously reported in edition 106 of BC
Disease News (here), that the Serious Fraud
Office (SFO) had launched a criminal
investigation over the accounting and
business practices of Quindell after it
overstated annual profits by £312 million.
It has been announced this week that the
SFO have now requested that Slater and
Gordon (S&G) produce files opened by
Slater and Gordon Solutions Legal Limited
(the UK subsidiary set up following the
acquisition of the professional services
division of Quindell in 2015).54
Reporting to the Australian Stock Exchange,
S&G confirmed that the SFO notice
specified Watchstone Group Plc (formerly
Quindell Plc) as the ‘person’ under
investigation.
This follows the update, included in last
week’s edition of BC Disease News (here),
that S&G are to issue proceedings against
Watchstone Group Plc for £600 million by
the end of May for ‘fraudulent
misrepresentation’.
The full announcement delivered to the
Australian Stock Exchange by S&G this
week can be accessed here.
Fibromyalgia Research
Links Disorder with
Hearing Loss
In November 2016, results of a research
study were published in Biomed Central
Musculoskeletal Disorders, which display a
correlation between musculoskeletal pain
and subjective hearing impairment.55
Until
now, the relationship between fibromyalgia
and subjective hearing acuity had
produced contradictory findings and, thus,
were inconclusive.
Fibromyalgia is a widespread
musculoskeletal pain disorder that
sensitises, or dysregulates general
functioning of the nervous system, resulting
in heightened perception of pain, while
often causing sleep, memory,
concentration and mood problems,
chronic fatigue syndrome, irritable bowel
syndrome interstitial cystitis and
temporomandibular disorder, among
many other comorbidities (co-occurring
diseases or disorders). Diagnoses of
fibromyalgia around the world have shown
a range of prevalence, but is usually
expressed in 2-11% of populations and is
more commonly found in women than in
men, increasing with age.
At the Norwegian University of Science and
Technology in Trondheim, Nord-Trøndelag
County, a study, led by Magne Stranden,
sought to conduct a comprehensive
experiment and obtain clarity surrounding
fibromyalgia’s effect on sensory stimuli.
Fibromyalgia is believed to affect central
neural processing, rather than organ-
specific pathology and could therefore be
described under the umbrella term:
‘centralized sensitization syndrome’.
44,494 individuals took part in the health
study, having undergone audiometry
testing and completed a detailed
questionnaire which mapped symptoms of
fibromyalgia. Test subjects were split into
groups: those with fibromyalgia; those
suffering from localised and widespread
musculoskeletal pain; and a control group
without fibromyalgia. When recording their
results, researchers made adjustments for
the participants’ ages, education, anxiety,
depression and hearing thresholds, in order
to calibrate external variables which could
impinge upon the validity of the data
acquired.
The author of the paper stated as follows:
‘Our study showed increased probability for
subjective hearing loss, both in persons with
fibromyalgia and other musculoskeletal
pain, especially widespread pain, after
adjustment of audiometric measured
hearing loss and sociodemographic and
psychological variables. The finding
supports the increasing recognition that
medically unexplained pain conditions
may pertain to a larger spectrum of
symptoms, and that a common
denominator for the different symptoms
might be a more general dysregulation in
perception of sensory stimuli’.56
Compared to the control group, those who
suffered with fibromyalgia were 4.5 times
more likely to suffer from hearing loss, while
those with other musculoskeletal condition
were 1.8 times more likely. This infers that
with rising levels of musculoskeletal pain
comes an increased risk of hearing
impairment.
Looking to the future, the author of the study
has said that:
‘...it would be interesting to address
auditory perception among patients with
fibromyalgia and other chronic pain in a
prospective and nuanced manner,
encompassing both experiences of explicit
hearing problems and hypersensitivity to
sound’.57
How Does the
Menopause Affect
Hearing Acuity?
On 10 May 2017, Menopause, the Journal
of the North American Menopause Society,
made available to the public, details
pertaining to a 22 yearlong study, carried
out by the Brigham and Women’s Hospital
in Boston, Massachusetts, investigating a
potential trend between hearing loss and
female hormonal balance during the
menopause.58
Hypothesising over historic research, which
implied that a natural reduction in
oestrogen levels during the menopause
increases the risk of hearing loss, the
researchers in this study anticipated that
post-menopausal hormone therapy (HRT)
would slow the decline in acuity by
replenishing any oestrogen deficit.59
Between 1991 and 2013, 80,972 women at
a baseline age between 27 and 44, took
part in the Nurses’ Health Study II, all of
PAGE | 12
whom had menopausal status and some of
whom were undergoing a course of oral
HRT. Over a follow-up period of 1,210,928
years, representing the cumulative ageing
of all participants, 18,558 cases of hearing
loss were identified through self-reporting,
which was equivalent to 23% of the
experimental subject class.60
Within the pool of 18,558 hearing loss
sufferers, no significant overall association
could be deduced between menopausal
status and the risk to hearing loss, although
association was established in individuals
who began the process of natural
menopause at an older age (50+); an
increased chance of 10%.61
The latter was
conducive to the findings in past studies
referred to above.
However, to the surprise of many, the results
of the study conveyed, albeit
unexpectedly, that the likelihood of
developing hearing loss escalated by 15%
as a result of HRT use over a period of 5 to
10 years and symptoms continued to
worsen by a further 6% if taken for more
than 10 years.62
Sharon Curhan, lead author and
researcher at the Channing Division of
Network Medicine noted that:
‘Many factors contribute to acquired
hearing loss, including age, genetics,
noise, medical conditions, diet, and
lifestyle factors ... Our research focuses on
identifying preventable contributors to
hearing loss ... the role of sex hormones in
hearing is complex and incompletely
understood ... These findings suggest that
hearing health may be a consideration for
women when evaluating the risks and
benefits of hormone therapy’.63
Dr. JoAnn Pinkerton, Executive Director of
the North American Menopause Society,
when addressing the unanticipated nature
of the relationship discovered, commented
that this:
‘... should lead to more testing in a
randomized, clinical trial. Information
about the potential effect on hearing is
important to include in a discussion
regarding the risks and benefits of hormone
therapy for symptomatic menopausal
women’.64
Meanwhile, Dr Heather Currie, Chairman of
the British Menopause Society, stated, in
defence of HRT, that:
‘This type of trial relies on women’s self-
reported hearing loss and does not prove
that HRT causes this – only that there may
be an association. This should not terrify
women and, as we have always said, the
decision about HRT should be an individual
choice based on the balance of benefits
and risks’.65
More research in this clinical area is to be
expected over time, especially as this latest
discovery has poured greater confusion on
the link between hormones and their
impact on hearing loss.
Launch of
Mesothelioma Breach
of Duty Guide
Liability is becoming an increasingly live
issue in mesothelioma claims. In this Guide
we consider how the courts deal with these
liability issues and what practical handling
guidelines can be gained. In part 1 of this
Guide we consider the essential
requirement of the claimant proving
exposure on balance of probabilities. We
then go on in part 2 to consider the
common law regime for proving exposure
and show why exposure to any level of
asbestos does not automatically amount to
a breach of duty of care. Finally in Part 3,
we compare the approach at common law
with the statutory regime for asbestos and
ask ourselves if the latter imposes more
onerous duties on employers or if it simply
mirrors those obligations at common law.
The Guide can be accessed here.
Beware of Agreeing
Costs Budgets by
Default
An important point to surface from the
Association of Personal Injury Lawyers (APIL)
conference last week relates to court
directions and costs budgets.66
It has been
reported that some courts, when sending
out directions for the CCMC, include the
following phrase:
‘The parties shall seek to agree the costs
budgets. If any party wishes to challenge
the budgeted costs of an opponent, they
must file and serve not less than 3 days
before the hearing a written statement
setting out which stages (if any) of the
budget is contested, why, and what is said
to be the appropriate figure. In default any
budget or stage thereof not so challenged
shall be deemed to be agreed’.
In instances where parties are non-
compliant and still wish to dispute the
budget, relief from sanctions will be
required.
This practice is not widespread and, as
such, practitioners will need to be
particularly careful when checking
directions.
De-politicisation of the
Discount Rate?
Last week, we discussed the reactions of
various organisations to the Ministry of
Justice’s 6 week discount rate consultation:
‘Personal injury discount rate: how it should
be set in future’.67
Since then, the Law
Society has submitted its response stating
that the power to set the rate should be
protected from ministerial influence:68
‘Fundamentally, any changes should not
undermine the 100% compensation
principle. We agree that the current
methodology could be changed to better
reflect the potential yield claimants could
PAGE | 13
receive from investing a lump sum as long
as it does not undermine the 100%
compensation rule ... Decisions on awards
made by the courts should not be subject
to political influence. In order for the civil
justice system to retain the trust and
confidence of claimants and defendants,
the process should be fully independent
from government’.69
This would remove the Lord Chancellor,
currently Elizabeth Truss MP, from the
method by which an adequate discount
rate is calculated. Replacing political
figures would be a panel of independent
experts with financial investment
qualifications and/or experience would be
best suited to debate change, chaired by
a government actuary. Entrenched in Law,
a review would occur every 5 years, so to
distance the rate setter from inducing the
timing of any alterations made. Meanwhile,
the judiciary would retain fettering powers
to apply a different rate from the one
specified, if they believed it was
necessary.70
Will the Prison and
Courts Bill Resurface?
Last week, the Conservative Party published
its election manifesto.71
Previously, the wash
up period preceding the recess of
Parliament had halted the passing of the
Prison and Courts Bill, which led to
speculation over whether the Bill will
resurface when the new Government takes
office.
Provisions encased within the Bill included
the raising of the small claims limit for RTA
cases from £2,000 to £5,000, with the aim
of preventing fraudulent soft tissue whiplash
actions, while many commentators and
leading industrial figures perceive the Bill as
an opportunity to revise the controversial
(-)0.75% discount rate on lump sum
damages.
In chapter 3, titled: ‘The World’s Great
Meritocracy’, the party heralds that they:
‘... will reduce insurance costs for ordinary
motorists by cracking down on
exaggerated and fraudulent whiplash
claims’.72
It seems then, that if the Conservative Party
is re-elected in June, its Justice reform
strategy will continue the progress made
thus far.73
Further, given that the Labour
Party has, until this point, left proposals
unopposed,74
if they were to form a
Government, as a majority or in coalition, it
is foreseeable that a similar policy could be
adopted.
Jackson LJ Sceptical
Over Fixed Costs in
Clinical Negligence
Claims
In edition 176 of BC Disease News (here), we
reported on the work of Jackson LJ, and his
‘progress report’ on the introduction of fixed
recoverable costs in the lower regions of
the multi-track, which is awaiting official
release in July. Following this, the
Department of Health has commenced a
review of fixed fees in high value clinical
negligence claims worth up to £25,000.
In a recent speech, given at the Association
of Personal Injury Lawyers’ annual
conference, Jackson LJ expressed his
dissatisfaction with such a proposal, unless
it was limited to cases where causation and
liability were admitted. The reasoning
behind this is that the civil justice system
would, according to his expertise, face
‘considerable difficulties’ if such a regime
were to be implemented.75
Despite having
championed a blanket threshold of
£250,000 across all civil claims in the past,
at the conference, he confessed that:
‘These reforms have now been in place for
just over four years [since the Legal Aid,
Sentencing and Punishment of Offenders
Act]. There were teething problems which
have been dealt with, costs management
is now working much better, so after four
years the time has come to look again’.
A fortnight ago, we discussed (here) the
Civil Justice Council’s proposal to ‘pool’
and ‘analyse’ both consultations ‘before
bringing forward finalised reform
proposals’. It is possible that Jackson LJ may
consider this suggestion, after having
weighed in on the clinical negligence fixed
costs debate last week.
‘Hot-Tubbing’ Should
Not be the Default
Position?
We have written before, as recently as
edition 180 of BC Disease News (here),
about expert ‘hot-tubbing’ and how it
‘should’ gradually become a ‘default
position’ in the Mercantile Court and
Technology and Construction Court
(TCC).76
Now, a sub-committee of the Civil
Procedure Rule Committee (CPRC), chaired
by Mr Justice Kerr, has warned against
forcing this procedure on ‘unwilling parties’
during a committee meeting.77
The sub-
committee was initially set up following
a Civil Justice Council (CJC) report in
August 2016.
‘Hot-tubbing’ is best described when
experts concurrently adduce evidence.
The concept was introduced as a Jackson
reform, which came into force on 1 April
2013 and hoped to reduce the ‘wasteful
duplication of effort and cost’ associated
with obtaining expert evidence. The Expert
Witness Institute’s recent figures highlighted
that only 15% of experts when questioned,
admitted to hot-tubbing participation,78
despite Civil Justice Council (CJC) research
confirming 83% of judicial respondents
considered the quality of expert evidence
to be an improvement over the formerly
accepted procedure.79
Consequently, concern has grown over
why a positive response to ‘hot-tubbing’ has
not caused a shift in ‘uptake’ statistics. On
the contrary, in the CPRC sub-committee’s
February report, they revealed that ‘hot-
tubbing’ has not even been taken up
voluntarily, suggesting that unless it is
actively promoted in specific cases, the
PAGE | 14
civil justice system will fail to deliver the
desired benefits.80
However, it was stressed,
at the time, that a balance must be struck
between caution over extending the scope
of ‘hot-tubbing’ and proactive
encouragement.
Even though the CPRC sub-committee
opposes the principle that hot-tubbing
should become the ‘default’ position, since
it is not ‘feasible or desirable to identify
classes of case that are suitable...’ they
believe that the procedure will ‘become,
increasingly, a normal feature of expert
evidence in all courts’ and should apply
where ‘possible and appropriate’.
Further, they said:
‘There are no discernible patterns emerging
to indicate when it is likely to be used, other
than that it is more likely in complex cases
involving large sums of money...’ However,
‘It is probably safe to say that hot-tubbing is
unsuitable in cases where there is a serious
challenge to the expertise or credibility of
an expert, at least until that challenge has
been determined; beyond that, adoption
of criteria or guidelines for determining
whether hot-tubbing is suitable, is a
preferable approach’.
One of the hindrances of hot-tubbing
growth noted by the sub-committee is the
‘absence of generalised early docketing’
of cases, which makes ‘top-down’
implementation impossible. They gestured
that: ‘There is a ‘chicken and egg’ issue,
seeing that a rise in ‘hot-tubbing’ (the
chicken), ‘would diminish suspicion, hostility
and resistance to it from parties’, but ‘hot-
tubbing’ could not enter ‘mainstream
litigation culture’ if there is a docketing
absence (the egg).
Nevertheless, as a suggestion to increase
uptake, the sub-committee advised that
parties could be offered ‘a streamlined
process similar to the shorter trial scheme,
or an earlier hearing date ... as incentive to
promote its use, particularly if it saves costs’.
The sub-committee will now consider rule
amendments best suited to accommodate
increased ‘hot-tubbing’ use in the civil
justice system.
Immunotherapy Use in
Early-Stage Lung
Cancer
A new study has discovered that a type of
cancer treatment, which has benefitted
patients enduring the latter stages of lung
cancer, may also yield promising results
with newly diagnosed patients.81
Some
might assume that these findings are also of
relevance to mesothelioma patients, but
this was not conclusively proven during the
course of the study.
Immunotherapy is an emerging treatment
for some cancers, whereby the body’s own
immune system is ‘switched on’, allowing it
to attack cancer cells. In issues 167 (here)
and 176 (here) of BC Disease News, we
have previously covered a specific type of
immunotherapy treatment, known as
pembrolizumab (brand name – Keytruda),
which is a checkpoint inhibitor drug.
Checkpoint inhibitors work by interrupting
an interaction between a protein located
on cancer cells (known as PD-L1) and a
protein located on immune cells (known as
PD-1), which would otherwise instruct the
immune cells not to attack the cancer cells.
Therefore, disruption of this interaction
allows the immune cells to recognise and
destroy cancerous cells.
There is evidence in support of clinical
benefits for patients with melanoma and
lung cancer, although evidence
surrounding the treatment of mesothelioma
is still yet to be fully determined. Data is
available for mesothelioma patients who
have already been treated with routine
therapies, but the dataset is small, due to
low patient numbers. However, we are now
seeing private treatment costs of Keytruda
in an increasing number of living
mesothelioma claimants, following
remarkable lung cancer patient outcomes,
which are typically valued at around
£70,000 or more. Further, in most trials
involving both lung cancer and
mesothelioma patients, Keytruda has been
prescribed post-chemotherapy or post-
standard treatment.
In the new study, researchers at the Tisch
Centre Institute at Mount Sinai have
discovered that some of the same immune
cells that allow immunotherapy to reverse
the malignance of late-stage lung cancer
are also present as the disease begins to
take hold.82
Samples of patients’ lung
tumours, healthy lung tissue and blood
were analysed and investigated
immediately after lesion removal surgery, in
order to ascertain their immune properties.
Interestingly, the researchers established
that stage I lung cancer lesions already
harbour immune system components that
likely compromise the anti-tumour T cells’
ability to fend off cancer. This is indicative
of the fact that checkpoint inhibitors,
particularly those that target PD-1 and PD-
L1 interaction, may be effective in treating
early-onset cancers.
Results from the first clinical trial of a PD-L1
inhibitor in early-stage lung cancer patients
were announced in October. The small
study found that immunotherapy with the
drug nivolumab (brand name – Opdivo) is
safe and feasible at that stage.83
Currently, 304 relapsed (stage III)
mesothelioma patients, across 20 UK-wide
industrial sites, are undergoing nivolumab
therapy at the University of Southampton’s
Centre for Cancer Immunology, which has
been the product of research jointly
conducted by the University of Leicester
and the University of Southampton. Stage III
trials are the most expensive and time-
consuming to conduct, as they use larger
test groups to further assess drug efficacy.
Within the group of test subjects, two thirds
of the participants will receive the
treatment drug, while the remaining third
act as the control, receiving a placebo. This
will continue for up to a year, unless the side
effects pose a threat to their health or the
mesothelioma returns.
Cancer Research UK have provided the
necessary funding and are hoping that the
trial will determine whether the drug, which
has been used to successfully treat
PAGE | 15
advanced melanoma and kidney cancer,
is successful at boosting late-stage
mesothelioma survival in patients whose CT
scans show a worsening of their
mesothelioma, despite having already
been treated with at least 2 different
courses of chemotherapy.84
The main aims
of the trial are to evaluate:
how successful nivolumab is at
treating late-stage mesothelioma
(Overall survival? Progression free
survival? Overall response rate?);
whether nivolumab is safe for human
consumption (toxicity); and
how nivolumab affects a patient’s
quality of life (patient questionnaire).
Professor Fennell, clinical lead Professor at
the University of Leicester, has stated that:
‘Preliminary studies targeting PD-1 in
mesothelioma have shown promising
activity. CONFIRM aims to definitively assess
the true benefit of nivolumab for patients
with relapsed mesothelioma in a setting
where there is an unmet need. Critically, we
aim to understand why patients respond (or
not) to this drug, and identify biomarkers to
ensure that we can personalise therapy to
maximize the benefit for patients’.85
Recruitment for the ‘CheckpOiNt Blockade
For Inhibition of Relapsed Mesothelioma’
(CONFIRM) investigation has just begun and
is expected to continue until March 2021.
The final data collection is likely to take
place in summer of 2021 and final results
will be published subsequently. Sometimes,
preliminary data from small groups of
participants are reported at conferences
while the trial is still ongoing, so we will
continue to update readers on the clinical
trial’s progress as and when worthwhile
information becomes available.
If further studies offer more evidence that
checkpoint inhibitors can be effective in
early-stage lung cancer, interest in their use
in early-stage mesothelioma is likely to
follow. Early-stage mesothelioma diagnosis
is rare, because there are either no
symptoms, or symptoms do not allow
differentiation from other, more common,
chest disorders. However, some early
cases are discovered accidentally. The
use and success of checkpoint inhibitors in
late-stage lung cancer and some small
studies of mesothelioma patients have led
to claims for their use in late-stage
mesothelioma, and so it follows that, if there
is evidence for their success in early-stage
lung cancer, trials and claims for these
drugs for early-stage mesothelioma may
eventually appear.
Updated Mesothelioma
PSLA Guide
Two years since our last edition, this week
we release the 4th edition of our
mesothelioma PSLA guide.
This contains information on actual awards
for mesothelioma, dependent on age and
the period between onset of the disease
and death, or anticipated date of death.
These are provided in the form of ‘ready
reckoner’ tables, organised by award size,
claimant age and duration of symptoms.
In addition to this, our mesothelioma PSLA
calculator can be accessed here - and
provides estimated common law awards
according to age and duration of
symptoms, based on these ready reckoner
tables.
The guide can be accessed here.
PAGE | 16
Court of Appeal Find
Obsolete Miners’ Law
Firm Negligent: Perry v
Raleys Solicitors [2017]
EWCA Civ 314
The Court of Appeal has ruled, in the case
of Perry v Raleys Solicitors [2017] EWCA Civ
314 that the now defunct miners’ law firm,
Raleys Solicitors, must pay £15,000 for
negligent advice it gave to a client, a
former miner.86
As is well known, the Department for Trade
and Industry, which had assumed
responsibility for the liabilities of the
National Coal Board/British Coal
Corporation liability, set up a
compensation scheme in 1999 to provide
tariff-based compensation to miners who
had been exposed to vibration and in
consequence suffered from vibration white
finger or VWF (there was a similar scheme
set up to compensate those suffering from
COPD).
We discussed the Coal Health
Compensation Schemes in greater detail in
edition 128 of BC Disease News, where we
highlighted that many of the top personal
injury claimant firms had profited from the
fixed tariff compensation scheme. Raleys
Solicitors was among these firms and
allegedly earned tens of millions of pounds
in fees. In 2009, six partners of Raleys were
either suspended or fined by the Solicitors
Disciplinary Tribunal for misconduct in the
way the firm handled the claims. Raleys
went into administration last year.
This is not the first time that Raleys has been
in the spotlight for professional negligence
claims related to former miners. In editions
28 and 94 we considered the similar case
of Proctor v Raleys Solicitors Ltd where they
were also found to be negligent in advice
given to a claimant leading to under
compensation.
The claimant in this case became a miner
in 1966, as an employee first of the National
Coal Board, and then of its successor, the
British Coal Corporation. As a result of using
vibratory tools he developed VWF. He
continued to work in the industry until he
took redundancy in 1994 when he ceased
work completely. In 1996 he instructed
Raleys, to pursue on his behalf a claim for
damages as a result of developing this
condition.
The claimant eventually settled his claim for
VWF for £11,660 on the advice of Raleys but
which did not include any element of
services claim. On the basis that the
claimant could not carry out six everyday
tasks without assistance because of his
injury, he was entitled to make a claim for
services under the ‘Services Agreement’
which supplemented the main Scheme.
This had not been pursued by Raleys.
The claimant, several years later, sued
Raleys, alleging that its negligent advice
had caused him to settle his claim at an
undervalue. He claimed damages in
respect of the loss of opportunity to claim a
services award in respect of heads of
damage available under the ‘Services
Agreement’, namely gardening, window
cleaning, DIY, decorating, car washing and
car maintenance in the sum of £17,300.17
(plus interest).
Raleys initially defended the claim robustly,
putting forward a range of defences.
However, two days before the trial, they
admitted that they had negligently failed to
advise the claimant about the potential for
a services claim.
At first instance, the judge, HHJ Saffman
found that the claimant had not proved
that Raleys’ negligence had been the
cause of his settling his claim at an
undervalue and he did not accept that the
claimant could not perform those tasks
mentioned, unaided. As such Raleys
succeeded in their defence.
The claimant appealed to the Court of
Appeal on the following grounds:
1. The judge had misapplied the test
of causation in considering
whether the claimant had lost a
real chance of succeeding on a
services claim. Instead, the
question should have been, if he
had been properly advised would
he have made such a claim and if
he had made the claim would it
have had a real and substantial
rather than a merely negligible
prospect of success?
2. The judge had failed to attach
sufficient weight to the high
grading of the claimant’s VWF by
the experts when he concluded
that the evidence given by the
claimant and his family, regarding
his ability to carry out everyday
tasks, was false.
3. There had been a failure to apply
the principle that a claimant did
not have to be entirely disabled in
order to be entitled to a services
award.
Giving the unanimous ruling of the Court of
Appeal, LJ Gloster concluded that this was
‘one of those very rare cases where an
appellate court should interfere with the
factual conclusions of the trial judge’.
She went on to say at para 28:
‘In my judgment, the judge was wholly
wrong, both as a matter of principle and in
the particular circumstances of this case, to
have engaged in the kind of factual
determination which he did as to whether,
on the balance of probabilities, Mr Perry
could have brought an “honest” services
claim. In reality the judge carried out a
determination on the balance of
probabilities as to whether Mr Perry would
have succeeded in his services claim
against the [government]’.
Her rationale for this was that there was, ‘no
way in which rationally the judge could
have regarded this as a case where it
could have been said that it was
“overwhelmingly clear on the material
before the court” (certainly not before the
trial began and even after all the evidence
had been heard) that the claimant had
only a negligible prospect of success’.
LJ Gloster also agreed with the claimant’s
submission that the trial judge had failed to
Case Law
PAGE | 17
apply a principle which was fundamental
to the compensation scheme, namely that
a claimant did not have to be disabled
entirely from carrying out a task in order to
be entitled to a services award.
As such, the claimant was awarded
damages of £14,556, plus interest at 8%,
on the basis of an 80% prospect of success
in the services claim. In handing down her
judgment, Gloster LJ said there were ‘sound
public policy reasons’ behind her decision.
She stated at para 36:
‘It is far too easy for negligent solicitors, or,
perhaps more pertinently, their insurers, to
raise huge obstacles to claimants such as
Mr Perry from pursuing their claims, if the
latter are required, effectively, to prove in
the litigation against solicitors that they
would have succeeded in making such a
claim against the third party. Raleys'
defence in the present case is an
unfortunate exemplar of insurers putting the
claimant to proof of every issue in the
underlying claim. Such an approach is
intellectually unsound; it requires the court,
inevitably many years later, to investigate
whether a claimant, who as here, may be
unsophisticated and not have kept records,
to prove what he would have done many
years earlier. In cases of admitted or
proven negligence, on the part of solicitors
or other professionals, that should not be
the correct approach. Nor, in my view, do
the authorities support it.’
The full judgment can be accessed here.
It is thought that there may be more of
these types of negligence claims against
solicitors firms in the future. This is
especially so as the claimant solicitors in
this case have launched a campaign
specifically designed to alert coal miners
who have previously made a successful
claim through the VWF compensation
scheme.
Ongoing Symptoms
and Video Evidence:
Karapetianas v Kent
and Sussex Loft
Conversions Ltd [2017]
EWHC 859 (QB)
The High Court has recently handed down
judgment in a case where the claimant’s
case as to ongoing symptoms was
contradicted by video evidence.
Interestingly, Mr Jonathan Swift QC held
that the evidence showed that there had
been a full recovery, but rejected the
argument that the claimant was fraudulent.
The claimant claimed damages for an
injury arising out of an accident at work in
2012 where he worked for the defendant as
a dry liner. The claimant was working in the
loft when the floor collapsed and he fell to
the floor below. The floor collapsed
because two supporting joists had been
removed, of which the claimant was not
informed. As a result of the accident, the
claimant suffered a pelvic fracture
(alongside a head injury and bruising to his
thigh which were not the subject of this
dispute). He underwent a pelvic
reconstruction operation but continued to
complain of severe pain in his right leg.
The claimant was examined by a range of
medical experts both before March 2014
and after August 2014 where he appeared
to be severely disabled. The claimant was
also videoed on a number of occasions
between the end of March 2014 and mid-
August 2014 in which the claimant appears
to have a relatively normal level of function.
Taking this evidence into consideration, the
judge stated:
‘…I accept that the video evidence shows
the claimant’s level of recovery from the
2012 accident, by the mid part of 2014. My
conclusion is that by that time, the claimant
had recovered to the extent that he had
regained something approaching normal
functionality’.
The claimant argued that his ability as
depicted in the video could be explained
on the basis that he was taking large doses
of painkillers, masking the pain and
enabling him to give the appearance of a
relatively normal level of functioning. The
judge rejected this as lacking plausibility
and as such accepted the video evidence
as representative of the claimant’s level of
functionality as at 2014.
The question was then posed: ‘Does the
available evidence make good a
contention that there is a sufficient causal
connection between the claimant’s current
condition and the 2012 accident?’
This was answered in the negative. The
judge concluded that the evidence did not
make that connection so that the
claimant’s condition was not therefore to
be attributed as a consequence of the
2012 accident.
The defendant alleged that in the absence
of any other evidence to explain the
claimant’s pattern of significant recovery
followed by significant decline, that the
court should find that since 2014 there was
nothing wrong with the claimant, or that at
the least the claimant had significantly
exaggerated any residual effects for the
2012 accident.
Whilst the judge accepted the logic in this
submission he found at para 36:
‘I carefully observed the Claimant when he
gave evidence; he was also in court for
most of the hearing, and so I saw him in one
context or another over a period of time.
The Claimant appears deeply distressed by
his condition, and as I have already said,
entirely worn down, and apparently
sincere. It is of course possible that all of
this is fake. But I regard that to be very
implausible. I mean no disrespect to the
Claimant when I say that I do not believe
that he is sufficiently sophisticated to be
capable of such a deception conducted
over so extended a period of time’.
PAGE | 18
As such, whilst it was concluded that the
2012 accident had not caused the
claimant’s alleged symptoms, it was also
found that the claimant had not acted
dishonestly in the proceedings. As such the
judge rejected the defendant’s application
that the claim be struck out with no
recovery of any damages. Instead, he
found that the defendant was liable to
compensate the claimant for the injury he
suffered in 2012 and for the consequences
of that injury thereafter but only to the
extent that by the end of May 2014 the
claimant had substantially recovered from
the effects of the injuries sustained.
The full judgment can be accessed here.
Amending the Claim
Form: ‘Substitution in the
Alternative’: Godfrey
Morgan Solicitors v
Armes [2017] EWCA Civ
323
‘If one amends to add a claim against
D2 in the alternative is one adding a
defendant, or substituting one?’
This was the question identified by HHJ
Moloney QC at the first appeal of Armes v
Godfrey Morgan Solicitors. At the 2nd
appeal, heard by Burnett LJ at the Court of
Appeal this month, his Lordship overturned
the previous decisions in relation to
amendments made to the Claim Form after
the limitation period had expired,
explaining:
‘In my view the claimant added the Firm
outside the limitation period in
circumstances which are not sanctioned by
the 1980 Act and the CPR. The Firm's
application to disallow the amendment
should have succeeded’.
The facts of the case were as follows:
The claimant consulted a solicitor in August
2006. In December of 2008, Personal Injury
and Employment Law claims were brought
for work related stress, suffered during a
course of employment at Norfolk County
Council, between 2002 and 2006.
However, on 15 March 2010, the action
was struck out, as a result of a compromise
agreement, signed by the claimant solicitor
on 9 October 2007. That compromised
both the EL and PI limbs of claim. The
claimant contended this, arguing that his
solicitor was negligent in compromising the
PI claim, when it was agreed that he would
only compromise the EL claim.
Subsequently, the claimant sought new
legal instruction to issue a claim in
professional negligence against ‘the
Company’ of solicitors, alleging vicarious
liability.
‘The Company’, formerly ‘the Firm’, was
incorporated in February 2007, but was run
as a partnership until September 2007. On
10 October 2007, a day after the alleged
incident of professional negligence, they
changed their name to the present,
‘Company’ name (Godfrey Morgan
Solicitors Limited), but all clients were clients
of ‘the Firm’ (Godfrey Morgan Solicitors) until
December 2007, transferring thereafter.
The original claim, against ‘the Company’,
was issued on 8 October 2013, which was
within the applicable 6 year limitation
period prescribed by Limitation Act 1980
provisions, immediately before expiration.
On 7 February 2014, the Claim Form was
amended to add ‘the Firm’ as a 2nd
defendant, after the expiration of this
aforementioned time limit, but within the 4
month period required for service.
Amendments made after proceedings are
issued on a party, but before the act of
service, is permitted by CPR 17.1, without
needing the authorisation of the court. As
a consequence of joinder without
permission, the newly added defendant
applied to disallow the amendment under
CPR 17.2.
This application was made on the basis that
the amendment was not sanctioned within
the confines of s.35 of the Limitation Act
1980 and concurrent CPR 19.5, which
regulate new claims in pending actions.
Was ‘the Firm’ added as a new party (non-
permissible), or substituted in place of ‘the
Company’ (permissible) in accordance
with the relevant legislation?
The parties recognised that, in order for this
amendment to stand, it had to be
characterised as a ‘substitution’ rather than
an ‘addition’.
The judge at first instance, HHJ Moloney
QC, concluded that it was a ‘substitution in
the alternative’. The defendant (‘the Firm’)
challenged this conclusion and appealed.
Sitting in the Court of Appeal, Burnett LJ
rejected the claimant’s argument that
proper analysis of the claimant solicitor
amending the Claim Form and thereby
joining ‘the Firm’ as the 2nd
defendant in
addition to ‘the Company’, would suggest
that the two parties were substituted for one
another, in spite of the fact that one of the
two parties was already named on the
Claim Form.
In doing so, his Lordship considered the
statutory regime, providing a chronological
application of CPR Parts 17 and 19, whose
content flows from s.35 of the 1980 Act, as
follows:
1. A party may amend his statement
of case at any time before it has
been served on any other party
(CPR 17.1).
2. The court may allow an
amendment whose effect will be
to add or substitute a new claim,
but only if the new claim ‘arises out
of the same facts or substantially
the same facts’ as a claim in
respect of which the party
applying for permission has
already claimed a remedy in the
proceedings (CPR 17.4).
3. The court may add or substitute a
party, but only if the ‘relevant
limitation period was current’ when
the proceedings were started; and
the addition or substitution is
‘necessary’ [CPR 19.5(2)].
4. The addition or substitution of a
party is ‘necessary’ only if the court
is satisfied that, the new party is to
be substituted for a party who was
PAGE | 19
named in the claim form in ‘mistake’
for the new party [19.5(3)(a)].
Burnett LJ, when tackling the definition of
‘substitution’, clarified, at paragraph 23,
that:
‘…These provisions draw a clear distinction
between addition, on the one hand, and
substitution on the other. The ordinary
meaning of the word substitution connotes
the replacement of one person or thing by
another. As Pearce LJ observed in Davies v
Elsby Brothers [1961] 1 WLR 170, when
considering the substitution of a party
permitted under the rules in different
circumstances, "substitution involves the
addition of a party in replacement of the
party that is removed"’.
In contrast, on the topic of ‘addition’, he
stated, at paragraph 26, that:
‘The provisions of section 35 of the 1980 Act
and the CPR do not invest a court with
power to allow an amendment to
proceedings to bring in a new party after
the expiry of a limitation period whenever it
considers it equitable to do so. That would
be to replicate the provisions of section 33
of the 1980 Act (the power to disapply the
limitation period in personal injury actions)
in much wider circumstances. Parties are
entitled to rely upon limitation as providing
protection, save in so far as legislation and
rules of court otherwise provide’.
Finally, when dissecting the concept of
‘substitution in the alternative’, at
paragraph 28, his Lordship concluded that
the term’s non-existed legal basis within CPR
19.5(3)(a), further to the unsanctioned
addition of ‘the Firm’ to proceedings,
outside of the limitation period, means that:
‘The argument that the Company and the
Firm have been substituted for the
Company whilst an ingenious attempt to
circumvent the obvious meaning of
“substitute”, does not assist the claimant. It
remains an addition’.
Burnett LJ believed that the purpose of the
amendment was to allow the claimant
solicitors to pursue both defendants,
pending confirmation that one defendant
was vicariously liable and, thus, the
remaining party could be served with a
discontinuance.
Ultimately, it was established that ‘the Firm’s’
application for the amendment to be
disallowed should have succeeded and,
accordingly, the appeal was allowed.
Armes, therefore, demonstrates the
difficulties that claimants may face when
there is uncertainty as to the legal identity
of the party being pursued and limitation
restricts the scope for amendment of the
Claim Form.
Liability In
Mesothelioma Claims:
Bussey v Anglia Heating
Ltd (2017)
This week, the High Court have held
themselves to be bound by the decision in
Williams v University of Birmingham [2011]
EWCA Civ 1242, and found that a widow’s
claim for damages following her husband’s
death from mesothelioma failed, as she
could not prove, on the balance of
probabilities, that the levels of his exposure
to asbestos, during the course of his
employment, exceeded that set out in TDN
13 of 1970.
Between 1965 and 1968 the deceased was
employed as a plumber with the first
defendants, at the time known as Anglia
Heating Ltd. He then had a period of self-
employment, but in 1969/70 he went to
work for Pump Maintenance Ltd, the
second defendants, until 1980. He then
worked for Anglia Television for about 20
years as a plumber.
The deceased developed mesothelioma in
2015 and died in January 2016. His wife,
the claimant, commenced proceedings,
for negligence or breach of statutory duty,
in July 2016, against the first and second
defendant, alleging that the deceased
had developed mesothelioma as a
consequence of being brought into
contact with asbestos during his
employment with them. The claim against
the second defendant was settled shortly
before trial.
The judge in this case, HHJ Yelton, was
concerned only with issues of liability and
quantum was agreed.
The claimant had made three statements
before his death which were not greatly
detailed with regards to the work he carried
out. The claimant was not called to give
evidence and neither the defendant, nor
the claimant, traced or called those who
ran the first defendant or anyone who
worked there with the deceased. As such,
the only oral evidence was from the
defendant’s expert and the claimants.
Having heard the evidence of both experts,
HHJ Yelton stated that he was satisfied on
the balance of probabilities that:
‘
(1) The defendants were at the material
time a substantial firm of domestic
plumbers in the Norwich area and
indeed the largest such business. That
of course is very different from being
part of a multi-national company.
(2) During his employment with the
defendants the claimant was mostly
employed in domestic heating and
plumbing work.
(3) The deceased’s exposure to asbestos
during this employment came from
cutting asbestos cement pipes,
usually flue pipes from a boiler or a
gas fire, with a hacksaw and also
from handling asbestos rope, from
which a length was teased out, and
then used to caulk joints on the new
flue pipes. The pipes had a diameter
of 4 to 6 inches and the asbestos
used was almost always chrysotile
(white asbestos), the most commonly
found type and the least toxic. The
deceased did not carry out lagging
or insulation work in the course of his
employment.
(4) The deceased’s own estimate was
that this cutting and caulking
occurred about once every two to
three weeks, and I accept that.
PAGE | 20
Secretary of State for Energy and Climate
Change [2016] EWHC 939 (QB) and Smith v
Portswood House Ltd [2016] EWHC 939 (QB).
As a result he found that he could not
accept the claimant’s argument re Williams
as the doctrine of precedent, recently
restated by the Supreme Court in Willers v
Joyce [2016] UKSC 44, meant that High
Court Judges are bound by decisions of the
Court of Appeal and if there are two
inconsistent decisions, the later should be
followed. As such, despite the apparently
conflicting Court of Appeal decisions in
Jeromson, Maguire and Williams, as
Williams was the most recent, that should be
the decision that is followed.
As such, in the present case, in order to
succeed, the claimant must be able to
show on the balance of probabilities that it
was reasonably foreseeable that the
deceased could contract mesothelioma,
based on knowledge at the time. As we
noted above, it was found that the
deceased’s exposure did not exceed the
limits outlined in TDN13.
In this regard, the judge found, that despite
the fact that the exposure to asbestos in the
present case preceded TDN13:
‘..it would in my judgment be perverse to
find that TDN13 increased rather than
decreased the levels of exposure which a
responsible employer would regard as safe.
In other words, if the decision in Williams is
correct, then a claimant cannot succeed in
a claim of this nature in relation to a period
before 1970 by showing that exposure to
asbestos was at a lower level than provided
by TDN 13.
This is the same approach to TDN13 taken
in Hill, in which Bean J stated:
‘…if, using Aikens LJ’s words, it is the best
guide to what was regarded as an
acceptable level of exposure in 1970, it is
hard to see that such a level would have
been regarded as unacceptable in 1968 or
1969’.
He went on at para 44:
‘Having concluded that the claimant has
failed to prove that the levels of the
(5) Dust was produced from the cutting.
The dust was not all from the asbestos
and much of it (Mr. Brady thinks about
85 to 90%) was from the cement used
in the pipes. There could be three or
four cuts in relation to each flue and
each cut would take about 5 minutes.
(6) Some dust went on to the deceased’s
clothes. After carrying out this work he
would blow on the cut end of the
pipe, and later sweep up, which
produced visible dust as it was done.
(7) The asbestos rope (which in his earlier
statements the deceased describes
as “string”, which is a misleading term)
was dusty and some of the dust came
off on to his hands. It is on this point
that I accept the evidence of Mr.
Brady, who had spoken to the
deceased about it. Rope of this type
often contained amosite (brown
asbestos) as well as the more
common and less toxic chrysotile.
(8) During his employment with the first
defendants, the deceased was not
given any advice about reducing
exposure to asbestos dust.
(9) It was exposure to asbestos which
caused the claimant to develop
mesothelioma’.
In terms of the level of asbestos the
deceased would have been exposed to,
the judge favoured the evidence of the
defendant’s expert. He agreed with him
that the dust from sweeping would produce
a similar result in the atmosphere to that
from cutting and that the claimant’s
proposition that this would be as high as 100
fibres/ml was not sustainable. Further, he
agreed that the sweeping took place after
a job which involved cutting and was
unlikely to have taken more than a few
minutes. HHJ Yelton also stated at para 20:
‘I also bear in mind that the exposure to
asbestos in this case was very limited in
time. On the basis that the deceased was
involved in the cutting of flue pipes once
every two or three weeks, his involvement
with the dust was not in my judgment
substantial although not de minimis. On the
figures set out above (which can only be
estimates) the deceased was exposed to
asbestos dust for up to an hour once every
two to three weeks’.
Further, he rejected the claimant’s reliance
on the fact that the deceased had the rope
with him in his vehicle and that he carried
the pipes into the building where he would
be working as he said that the exposure in
those circumstances was likely to be
minimal and of ‘little or no importance’.
It was concluded that, on the balance of
probabilities, the deceased was not
exposed to levels of asbestos dust beyond
those set out in TDN13, which had not been
published at the time of his employment
with the first defendant.
In this respect, the defendant relied upon
the decision of Williams, which established
that the correct legal test for breach of duty
where there was more than de minimis
exposure, was whether the degree of
actual exposure made it reasonably
foreseeable to the defendant that, as a
result of its conduct, the respondent would
be exposed to the risk of contracting
mesothelioma and that was to be based on
its knowledge at the time of the exposure.
The claimant submitted that the decision of
the Court of Appeal in Williams was
reached ‘per incuriam’, i.e. a lack of due
regard to the law or the facts and should
not be followed. It was this formulation of the
test of reasonable foreseeability that the
claimant disagreed with. Instead, the
formulation of the test of reasonable
foreseeability as seen in the Court of
Appeal decisions of Maguire and
Jeromson, which also concerned pre-1970
exposure, was preferred. In these cases, it
was held that an employer would be found
to be in breach of their common law duty
of care if he failed to reduce his employee’s
exposure ‘to the greatest extent possible’.
Whilst it was agreed that the exposure of the
deceased in this claim could have been
reduced, HHJ Yelton, pointed out that
Williams had in fact been followed by a
number of first instance decisions including,
McCarthy v Marks & Spencer Plc [2014]
EWHC 3183, Hill v John Barnsley & Sons
[2013] EWHC 520 (QB), Woodward v
PAGE | 21
deceased’s exposure to asbestos
exceeded those set out in TDN 13 (although
they were not de minimis), it seems to me
that I am bound by the logic of Williams to
hold that she has failed to prove that the
first defendants were negligent’.
Therefore, the claim was dismissed.
It is thought that this case will proceed to
the Court of Appeal shortly.
Cost Budgeting is Not a
Game: Findcharm Ltd v
Churchill Group Ltd
[2017] EWHC 1109
(TCC)
Last week, the High Court handed down
judgment over costs budgeting, following a
Case Management Conference (CMC).
Honourable Mr Justice Coulson, sitting in
the Technical and Construction Court, took
the opportunity, in Findcharm v Churchill, to
set out how judges should deal with
disputes surrounding costs where the
difference between the parties’ analyses
are poles apart.
In his introductory statements, he stated:
‘2. It is a fact of life for all judges who
undertake Case Management
Conferences, at whatever level, that they
are obliged to spend more time on them
than used to be the case, in order to deal
with cost budgeting disputes. A number of
steps have recently been taken to try and
make the process more user-friendly and
more efficient for the court. In particular,
the introduction of Precedent R, which
requires each party to comment on the
cost budget of the other, has led to a great
saving of time, because it has obliged the
parties to adopt a realistic attitude to the
budget of the other side, and has assisted
in the identification of the real disputes
between the parties on costs.
3. However, even now, some parties seem
to treat cost budgeting as a form of game,
in which they can seek to exploit the cost
budgeting rules in the hope of obtaining a
tactical advantage over the other side. In
extreme cases, this can lead one side to
offer very low figures in their Precedent R, in
the hope that the court may be tempted to
calculate its own amount, somewhere
between the wildly different sets of figures
put forward by the parties. Unhappily, this
case is, in my view, an example of that
approach.’
The facts of the case regarded a gas
explosion, which took place in the Churchill
Hotel at Portman Square. This forced the 4
month closure of a restaurant, operated by
Findcharm Limited. Subsequently,
Findcharm brought a claim for costs arising
from the explosion, valued at £820,000
(plus interest), predominantly for ‘business
interruption’ and ‘loss of profit’.
Findcharm made revisions to their cost
budget before the CMC, before submitting
a total budget of £244,676.30. Meanwhile,
Churchill’s Precedent R totalled £79,371.23.
Coulson J described this as a ‘basic’,
‘unrealistic’ budget, with ‘no utility’, that
contained ‘bare denials and non-
admissions’ which the ‘CPR was meant to
sweep away’.
As a result, an order was made against
Churchill, which stated that:
‘Unless within 21 days Churchill pleaded a
positive defence on the cause of the
explosion, they would be taken to admit
Findcharm's pleaded case on that issue’.
On this basis, the assumptions that had
been taken into account in Findcharm’s
Precedent R were deemed to be
‘reasonable’ and ‘appropriate’, namely
that there would be no need to collate
expert evidence dealing with the cause of
the explosion and that a single joint
accountant expert could address the claim
for loss of profit.
Held, at paragraph 11, disregarding
Churchill’s Precedent R:
‘Having considered Findcharm's revised
cost budget in the round, I conclude that it
is both proportionate and reasonable. I
therefore allow it in the sum claimed of
£244,676.30’.
In his closing statement, Coulson J
emphasised the duty of parties to civil
litigation that ‘...the Precedent R process is
carefully and properly adhered to...’
Therefore, by submitting unjustifiably low
figures, as Churchill pleaded, in the hope
that the court also provides a low valued
assessment, clearly amounts to an ‘abuse
of the costs budgeting process’.
Guidance on Striking
Out Particulars of Claim:
Kaplan v Super PCS LLP
[2017] EWHC 1165 (Ch)
On 3 May 2017, the High Court heard an
application in the case of Kaplan v Super
PCS LLP [2017] EWHC 1165 (Ch), where Mrs
Justice Rose struck out the particulars of
claim, brought by 5 litigants ‘in deceit’, over
false representations allegedly made by
the Defendants.
Four iterations of claim forms were issued
and served against the Defendant since
August 2014, but the Defendants, in this
trial, sought to strike out the claim form and
particulars and/or the claim in its entirety
applying CPR 3.4(2), while the Claimants
sought to amend their particulars of claim,
in order to ‘expand’ and ‘clarify’ the oral
evidence that formed the basis of their
‘deceit’ action.
CPR 3.4(2) provides as follows:
‘CPR 3.4
(2) The court may strike out a statement of
case if it appears to the court –
(a) that the statement of case discloses no
reasonable grounds for bringing or
defending the claim;
(b) that the statement of case is an abuse
of the court’s process or is otherwise likely to
obstruct the just disposal of the
proceedings; or
(c) that there has been a failure to comply
with a rule, practice direction or court
order.’
PAGE | 22
Directing the Court, her Ladyship Rose J
advised, at paragraph 37, that:
‘... it is the Claimants’ obligation to put the
case forward in a manner which does not
involve the Defendants having to chase
back through multiple cross-references to
other paragraphs in the pleading which
may then say something different leading
to a lack of clarity about what the
allegation actually is. I agree with the
Defendants that the proposed amended
Particulars of Claim are properly described
as unnecessarily prolix and embarrassing.
They fail fairly to identify the claims being
pursued in a way which can be reasonably
understood or responded to by the
Defendants.’
Expansion of claimant pleadings up to that
moment, which sought to ‘surgically’ clarify
their position, had been structured in an
incoherent way, with ‘incorrect’,
‘inconsistent’ and ‘flatly contradictory’
cross-referencing between paragraphs,
making it difficult for the individual
Defendants to establish what the alleged
wrongdoings were.
Held, at paragraphs 38-39:
‘I have therefore concluded that to accede
to the application to amend the Particulars
of Claim in anything like their current form
would be likely to obstruct the just disposal
of the proceedings within the meaning of
CPR 3.4(2)(b) ... I therefore will refuse
permission to amend the deceit claim and
strike out the Particulars of Claim’.
However, given a lack of ‘abusive’ or
‘ulterior’ motive behind the litigants’ claim,
she ‘... decided to step back from striking
out the claim in its entirety’, before the 6
year limitation period expired, but
requested that the Claimants ‘undertake a
serious review’ of their allegations, limiting
the extent of those allegations ‘to matters
which they have a reasonable prospect of
establishing at trial’.
PAGE | 23
Mesothelioma Series: Part 10: Factories Act 1961/1937 – S.63 – ‘Reasonably
Practicable’ and ‘Practicable’
INTRODUCTION
In the past week’s features we have looked at the construction of one of the most commonly pleaded statutory duties in asbestos claims,
s.63(1) of the Factories Act 1961 (preceded by s.47(1) of the Factories Act 1937). We deconstructed it into 5 distinct parts, as follows:
‘In every factory in which, (1) in connection with any process carried on, (2) there is given off any dust or fume or
other impurity of such a character and to such an extent as to be likely to be injurious or offensive (3) to the persons
employed, or (4) any substantial quantity of dust of any kind, (5) all practicable measures shall be taken to protect
the persons employed against inhalation of the dust or fume…’.
Each of these elements are required in order to establish liability under the sub-section. Having dealt with the meaning of ‘any process
carried on’, ‘persons employed’ and the two limbed test i.e. ‘likely to be injurious’ and ‘substantial quantity’, we now turn to the final
element of the section. What is meant by ‘all practicable measures’? Does this import a concept of foreseeability? How otherwise can an
employer take practicable measures against unknown risks? How do the answers to these questions impact on the second limb test of
‘substantial quantity’ which, as we concluded last week, does not involve any notions of foreseeability? Finally, we go on to compare the
requirement to take ‘practicable’ measures with that of taking all ‘reasonably practicable’ measures, frequently found within other parts
of the Factories Acts and other legislation.
On the next page, we provide a table of the regulations/legislation commonly relied upon within asbestos claims in which the terms
‘practicable’ and ‘reasonably practicable’ appear:
Features
PAGE | 24
PAGE | 25
MEANING OF PRACTICABLE MEASURES
‘…all practicable measures shall be taken to protect the persons employed against inhalation of the dust or fume…’
Both limbs of s.47(1)/s.63(1) of the Factories Acts require the occupier to take ‘all practicable measures’ to protect the persons employed
against inhalation. Section 4(1) of the Act requires the occupier to take ‘practicable’ measures to maintain ventilation whilst Section 26/29
qualifies the keeping of a workplace safe by the words ‘reasonably practicable’.
What does practicable measures mean? Do the words import any notion of foreseeability? How does an employer adopt measures
against unknown risks?
In Adsett v. K. and L. Steelfounders and Engineers Ltd [1953] 1 WLR 773, the Court of Appeal considered the meaning of ‘practicable’ in
relation to section 47(1) of the Factories Act 1947 (the antecedent of section 63). In deciding the meaning of ‘practicable’, Singleton LJ
stated (at page 779):
‘It seems to me that you must have regard to the position which existed at that time’.
Singleton LJ continued (pages 779-80):
‘… the question is, had they taken all practicable measures; but if no one in science, or no one in the engineering
world, or no one who has had charge of a big factory, knows of a system by which one can combine a grid and
dust extractor, with the dust extractor under the grid, until these defendants found that way and decided to try it, is it
to be said that that which they discovered by their experimenting was practicable long before they found it? There
has not been a word of evidence to show that anyone knew of any such system before, though dust extractors by
themselves were well known’.
Singleton LJ concluded (page 780):
‘In deciding whether all practicable measures were taken one must have regard to the state of knowledge at the
time, and particularly to the knowledge of scientific people. It is easy to be wise after the event, but I find it impossible
to say, on my view of this section, that it was shown that the defendants were in breach of the duty imposed on them
by the section’.
In Carmichael v. Cockburn [1955] SC 487, in relation to section 47(1) of the 1937 Act, Lord Thomson stated (at page 489):
‘The introduction of the word “practicable” necessarily qualifies in some way the absoluteness of the injunction. I find
it difficult to think that an occupier of a factory, who undoubtedly need not take every conceivable measure to
combat a danger which is scientifically known, may none the less be under obligation to combat what in his
particular industry is scientifically unknown. Practicable measures in this context must mean such measures as a
reasonably careful employer, after making an assessment of what is necessary and sufficient according to the
circumstances existing at the relevant time, would take to deal either with dust of an injurious quality or dust in
substantial quantities’.
In Gregson v Hick Hargreaves & Co Ltd [1955] WLR 1252 when considering what practicable measures could be taken by a factory
occupier, Singleton LJ said:
‘No one could successfully contend…that if there was given off a considerable quantity of dust at one end of this
100 yards long shop, everyone down to the other end of the shop should be provided with a mask’.
In Wallhead v. Ruston and Hornsby Ltd [1973] 14 KIR 285, Bagnall J considered the meaning of ‘practicable’ and found (page 292):
‘However, on one point the authorities to which I have been referred are unanimous: what is practicable must be
determined in the light of current knowledge’.
Bagnall J concluded (page 293):
PAGE | 26
‘… in determining both the possibility or likelihood of the dust in question being injurious and the practicability of
remedial or preventive measures, I must have regard to what the defendants knew or ought to have known at the
relevant date on the footing that they ought to have known that which they would have ascertained if they had read
the literature and made the enquiries which a reasonably prudent and careful employer of labour in an iron foundry
would have read and made’.
On the same page, Bagnall J also observed that the defendants must:
‘… be regarded as employers or ironfounders and not as pathologists or engaged on medical research …’
In McDonald, when considering the issue of whether foreseeability was relevant to the 2nd
limb of s.47(1), Kerr cited and noted with
approval Richards v Highway Ironfounders (West Bromwich) Ltd [1955] and what was said by the then Master of the Rolls on the issue of
practicable measures. At paragraph 86 Kerr said:
‘The relevant phrase in section 47 is any substantial dust of any kind. I should start my discussion on this part by saying
what this does not mean. It does not mean a substantial quantity of injurious dust. The so-called dichotomy in section
47 points clearly away from such an approach. Whether the second limb of the subsection is triggered calls for a
purely quantitative assessment. It may well be, as suggested in cases such as Richards and Gregson, that the possibly
injurious propensity of the dust has a part to play in deciding what are practicable measures. But that has nothing to
say on the question whether, in the first instance, there is any substantial quantity of dust of any kind’.
PRACTICABLE v REASONABLY PRACTICABLE
It appears that the term practicable measures does import notions of foreseeability, but if a risk is foreseen then what are the practicable
measures to be taken? This has often been discussed in cases addressing the meaning of ‘reasonably practicable’ and any differences
with ‘practicable’.
The classic exposition of reasonable practicability is to be found in Asquith LJ's judgment in Edwards v National Coal Board [1949] 1 KB
704 CA at 712:
‘’Reasonably practicable’ is a narrower term than ‘physically possible’ and seems to me to imply that a computation
must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the
measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be
shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the
defendants discharge the onus on them’.
This was followed by Marshall v Gotham Co Ltd [1954] A.C. 360, a case concerned with the death of a workman caused by the fall of a
roof in a gypsum mine, the fall being the result of an unusual geological condition known as 'slickenside' which had not been found in
the mine for 20 years and which was not detectable by any known means before the fall, the mine owners were exonerated from liability
on the ground that they had proved that it was not reasonably practicable to ensure the mine's safety from such a danger. Lord Oaksey
held:
‘That is to say, what is 'reasonably practicable' depends upon a consideration whether the time, trouble and expense
of the precautions suggested are disproportionate to the risk involved. It is conceded in the present case that it was
not reasonably practicable to make the roof secure by timbering, and to have attempted to make it secure by
pneumatic props in some places and by leaving it unmined in others when no slickenside had ever occurred for a
period of 20 years was not, in my judgment, reasonably practicable’.
A useful evaluation of the quantum of risk was provided in Austin Rover Group Ltd v Her Majesty’s Inspector of Factories Appellant [1989]
3 W.L.R. 520, where it was held at para 627:87
‘It follows from the passages which I have quoted that, for the purpose of considering whether the defendant has
discharged the onus which rests upon him to establish that it was not reasonably practicable for him, in the
circumstances, to eliminate the relevant risk, there has to be taken into account (inter alia) the likelihood of that risk
PAGE | 27
eventuating. The degree of likelihood is an important element in the equation. It follows that the effect is to bring into
play foreseeability in the sense of likelihood of the incidence of the relevant risk, and that the likelihood of such risk
eventuating has to be weighed against the means, including cost, necessary to eliminate it’.
An example of this evaluation can be seen in the recent case of Mann v Northern Electric Distribution Ltd [2010] EWCA Civ 141, in which
the claimant trespassed onto a substation owned by the defendant and as a result was electrocuted and suffered serious lifelong injuries.
The claimant alleged breach of regulation 20 of the Electricity Supply Regulations 1988 which states:
‘The supplier shall –
(a) enclose any part of a substation in the open air, containing live apparatus which is not practicable, danger or
unauthorised access’;
At first instance the recorder found that:
(a) it was foreseeable that, with the help of a climbing aid such as the piece of wood propped up on the ground against the railings, a
person might climb on to the cross-bar of the railings (stage one); but
(b)(i) in general it was not foreseeable that even a determined trespasser would climb the distance of six feet eight inches between the
cross-bar and the flat top of the buttress (stage two); and
(ii) in particular it was not foreseeable that he would reduce that distance (albeit that in this case he remained confronted by the need to
climb five feet two inches) by use of a precarious wooden three-piece ‘makeshift ladder’ which someone had taken considerable trouble
to construct behind and on top of the stanchion.
The recorder therefore held that the element of foreseeability inherent in the concept of what was reasonably practicable was absent
and that the defendant had established that it had complied with paragraph (2)(a) of the regulation.
The claimant appealed to the Court of Appeal but this was dismissed. Lord Justice Wilson stated at para 18:
‘As the recorder observed, no amount of security measures will keep out a sufficiently determined trespasser. Thus,
for example, no wall, however high, is proof against the trespasser who has brought a ladder of equal height: entry
by such means may be foreseeable but it may nevertheless, for other reasons, not be reasonably practicable for the
supplier to prevent it. By contrast entry by the means adopted in the present case was, according to the unassailable
finding of the recorder, not foreseeable and it was, for that reason, not reasonably practicable for the defendant to
take further steps in relation to its wall, even when viewed in the context of its surrounding features, in order to prevent
it’.
How does this approach differ to that of ‘practicable’?
Lord Parker CJ in Moorcroft v. Thomas Powles & Sons Ltd [1962] 1 WLR 1147 (at page 1454) considered what the distinction between
‘practicable’ and ‘reasonably practicable’ might be (in relation to the Building (Safety, Health and Welfare) Regulations, 1948):
‘It seems to me that ‘practicable’ must impose a stricter standard than ‘reasonably practicable’. It may be that certain
matters one would take into consideration if the words were ‘reasonably practicable’, such matters as the cost and
the like, have to be eliminated’.
It may be noted that Lord Parker CJ does not suggest that foreseeability is a difference. So what about ‘reasonably practicable’ and
foreseeability?
In Abraham v G. Ireson & Son (Properties) Limited [2009] EWHC 1958 (QB), Swift J considered ‘reasonably practicable’ in relation to
regulations 82 of The Building (Safety, Health & Welfare) Regulations 1948 and regulation 20 of the Construction (General Provisions)
Regulations 1961. He stated that even if he had accepted the claimant’s argument that ‘likely to be injurious’ is an objective concept,
that knowledge of risk must nevertheless be relevant to the issue of ‘reasonable practicability’.
PAGE | 28
This was supported by Smith LJ in the Court of Appeal decision of Baker v Quantum [2011] UKSC 17, who, in relation to s.29 of the Factories
Act 1961 and the meaning of ‘reasonably practicable’, stated at para 83:
‘As a matter of common sense, if the employer does not know of the risk and cannot reasonably have been expected
to know of it, it cannot be reasonably practicable for him to take any steps at all. If, on the other hand the employer
ought to have known of the risk but did not and therefore never applied his mind to it, the burden on the employer,
seeking to make out the defence, would be to show that it would not have been reasonably practicable for him to
avoid or reduce the risk even if he had thought about it’.
As such, the Court of Appeal accepted that there was an element of foreseeability within the phrase ‘reasonably practicable’. However,
Smith LJ went on in para 89 to say:
‘[…]Thus, once any risk has been identified, the approach must be to ask whether it is practicable to eliminate it and
then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be
taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the
quantum of risk involved I cannot see how or where the concept of an acceptable risk comes into the equation or
balancing exercise. I cannot see why the fact that a responsible or official body has suggested that a particular level
of risk is ‘acceptable’ should be relevant to what is reasonably practicable. In that respect, it appears to me that
there is a significant difference between common law liability where a risk might reasonably be regarded as
acceptable and statutory liability where the duty is to avoid any risk within the limits of reasonable practicability’.
On appeal in the Supreme Court, Lord Mance, agreed that the phrase ‘so far as is reasonably practicable’ imports the concept of
foreseeability but he disagreed with the Court of Appeal’s conclusion that the knowledge and standards of the day are not to be taken
into account. He stated at para 82:
‘Had it arisen, I would have regarded the qualification as wide enough to allow current general knowledge and
standards to be taken into account. Even the Court of Appeal in its formulation acknowledged the quantum of risk
involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable
and what degree can only depend on current standards’.
Lord Dyson agreed with this interpretation and stated at para 123:
‘I would agree, however, that if the concept of reasonable foreseeability is not imported into “safe” in section 29(1),
then it is imported into reasonable practicability for the reasons given by Smith LJ’.
He went on at para 129 to say:
‘…I do not agree with the Court of Appeal that the acceptability of risk is irrelevant to reasonable practicability. I
would adopt what Lord Mance says at paras 82 and 83. Smith LJ refers to the “quantum of the risk” as being relevant
to whether it is reasonably practicable to eliminate it. I agree. But if the quantum of the risk is relevant to that question,
how can the fact that a Code of Practice says that a risk is acceptable not be relevant?’
Lord Kerr concurred at para 182 where he said:
‘By contrast, however, reasonable practicability does import consideration of what was known at the time that the
injury was sustained. By definition it cannot be reasonable to put in place measures that are not known to be
necessary. It may be practicable to do so but it cannot be said to be reasonably practicable. As the Court of Appeal
in the present case said at para 83 of Smith LJ’s judgment, it is “a matter of common sense [that], if the employer
does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably
practicable for him to take any steps at all”’.
Finally Lord Clarke, who also agreed that the qualification ‘as far as reasonably practicable’ involves a consideration of what risks are
reasonably foreseeable, relied upon the 14th edition of Munkman to conclude that the state of knowledge at the time must be taken into
account. He held at para 214:
PAGE | 29
‘Those conclusions are consistent with the view expressed in the 14th edition of Munkman at para 5.89:
“In considering what is practicable, account must be taken of the state of knowledge at the time. A defendant
cannot be held liable for failing to use a method which, at the material time, had not been invented: Adsett v K and
L Steelfounders and Engineers Ltd [1953] 2 ALL ER 320; nor for failing to take measures against a danger which was
not known to exist: Richards v Highway Ironfounders (West Bromwich) Ltd [1955] 3 ALL ER 205”’.
As such, the Supreme Court found unanimously that the qualification of ‘so far as reasonably practicable’ must be judged according to
the general knowledge and standards of the times and the burden is on the employee to show that the workplace was unsafe in that
sense.
What is to be considered ‘reasonably practicable’?
Lord Mance disagreed with the Court of Appeal’s suggestion that ‘there must be at least a substantial disproportion’ before the desirability
of taking precautions can be outweighed by other considerations, stating at para 84 that this approach:
‘…represents in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he
did all that was reasonably practicable’.
Lord Mance, also concluded that this qualification would allow current general knowledge and standards to be taken into account. He
stated at para 82:
‘The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to
satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence
of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be
addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor,
having more or less weight according to the circumstances, which may, on any view at common law, guide the
court when performing this balancing exercise…It would be strange if the Court of Appeal was right in suggesting
that, under the statutory formulation, this one factor is irrelevant, when the whole aim of the balancing exercise must,
in reality, be to identify what is or is not acceptable at a particular time’.
Here then it seems that the Supreme Court have found that the term ‘reasonably practicable’ does import a concept of foreseeability
and that this is no more onerous than the duty to take care at common law with the only difference being that the burden of proof on
reasonable practicability is upon the employer.
THE DIFFERENCE BETWEEN STATUTORY DUTIES AND COMMON LAW
We have seen in this series of features the sometimes differing duties imposed by statutory provisions when compared to the common law
but also seen that the two may simply mirror each other and are coterminous.
However an important point of distinction to highlight is that where any statutory provisions require the occupier (or employer) to take ‘all
practicable measures’ or measures which are ‘reasonably practicable’, the burden of showing that these were not practicable /
reasonably practicable rests upon the occupier / employer. The point must be pleaded and evidence advanced. This was first held in
Nimmo v Alexander Cowan & Sons Ltd [1968] A.C. 107, and reaffirmed by Lord Dyson in Baker v Quantum [2011] UKSC 17, at para 125
where he stated:
‘There are, in any event, two important respects in which section 29(1) clearly does not reflect the common law. First,
if a defendant wishes to say that it was not reasonably practicable to make or keep a place of work safe, the burden
is on him to do so; it is not on the claimant to prove that it was reasonably practicable. I accept that few cases of
this kind are likely to be decided on an application of the burden of proof. Nevertheless, in this respect there is a
legal difference between the statutory and common law positions. Secondly, the fact that breaches are offences is
a very significant difference. The fact that, as we were told, there have been few (if any) prosecutions is immaterial.
Parliament considered that a breach of section 29(1) was sufficiently serious to attract potential liability to criminal
sanctions’.
PAGE | 30
More recently, Lady Hale stated in McDonald v National Grid Electricity Transmission Plc [2014] UKSC 53 at para 109 where she stated:
‘The question then is whether practicable measures could have been taken to protect persons employed from
inhaling the dust. But that issue has not been raised by the appellant defendant, who has throughout argued that
the section does not apply, rather than that there was nothing the appellant defendant could reasonably have done
about it. The burden was upon the appellant defendant to make such a case and the appellant defendant has not’.
CONCLUSION
We established in edition 180 of BC Disease News that the first limb of s.63(1), the requirement to protect against dust ‘likely to be injurious’,
does import notions of foreseeability and is no stricter than the test of foreseeability at common law.
Conversely, the second limb to protect against dust be of ‘substantial quantity’, involves no consideration of what the defendant ought to
have known but instead is a purely quantitative assessment (what this assessment involves was discussed in last week’s feature).
However, once any duty is triggered the defendant must take all ‘practicable measures’ to protect the persons employed against
inhalation of the dust or fume which we then imports the concept of foreseeability. So whilst the second limb of s.63(1) may be absolute
in its terms, it is not absolute in its effect.
Both the terms ‘practicable measures’ and ‘reasonably practicable’, found elsewhere in the FA and other statutory provisions, import
notions of foreseeability.
However, a more onerous duty is established by practicable measures. Firstly, it seems such measures must be adopted wherever there
is a foreseeable risk-this is not necessarily the case where the requirement is to take reasonable practicable measures. Secondly issues
which are relevant to reasonable foreseeability-such as time & cost-as discussed below are irrelevant.
Where the employer is required to take ‘reasonably practicable’, such a duty does not inevitably arise for all foreseeable risks. There may
well be a risk which is foreseeable but none the less standards and guidance of the day suggest such risk is ‘acceptable’. There is no
requirement to implement reasonably practicable measures to safeguard against such risks. The test is more lenient than ‘practicable’.
The risks-in terms of the likelihood of risk occurring and the severity of injury should it materialise-will be balanced against factors such as
the cost, time and trouble involved in adopting measures to safeguard against the risk will be taken into consideration. If the proposed
measures are grossly disproportionate to the risks then there is unlikely to be a duty to adopt any reasonably practicable measures.
Whether a statutory provision uses the term ‘practicable measures’ or ‘reasonably practicable measures’, the onus is on the defendant to
plead /advance evidence that (i) the risks were not foreseeable, or that (ii) no practicable or reasonably practicable measures could be
adopted in respect of any known risks.
PAGE | 31
Mesothelioma Series: Part 11: Practical Handling of Mesothelioma Claims
INTRODUCTION
A common feature of many present day mesothelioma claims is the low level nature of the alleged exposure to asbestos. Increasingly
this raises 3 issues. Firstly, the level of exposure may have been so low that it is difficult for the claimant to prove there was exposure to
asbestos at all. Secondly, if there is proven exposure then the level may be such as was regarded as ‘safe’ at the material time. Thirdly,
any exposure may be so light and trivial so as to be considered de minimis and not materially contributing to the risk of injury.
Liability is becoming an increasingly live issue in mesothelioma claims and so far in this series of mesothelioma features we have
considered how the courts deal with these liability issues and what practical handling guidelines can be gained. In edition 170 of BC
Disease News we considered the essential requirement of the claimant proving exposure on the balance of probabilities. In editions 171,
174 and 175, we looked at the common law regime for proving exposure and illustrated why exposure to any level of asbestos does not
automatically amount to a breach of duty of care. Finally, in editions 178, 180 and 182 we compared the approach at common law with
the statutory regime for asbestos and concluded that the latter simply mirrors those obligations at common law imposing no more onerous
duties on an employer.
This week, we work through a practical case example, utilising the insights gained from our previous features, in order to outline the steps
needed to determine the key liability issues.
CASE EXAMPLE
Claimant was employed and exposed to asbestos with 2 employers between 1961-1975-Employer 1 for 10 years between
1961-1970 and Employer 2 for 5 years between 1971-1975;
Both employers operated in the construction industry building residential houses. Roof soffits and facias of the houses were
constructed using asbestos cement sheets;
Exposure with employer 1 arose from the claimant directly cutting the asbestos cement sheets with a circular saw for 1 hour
per day on a daily basis over 10 years;
Exposure with Employer 2 arose from the claimant standing in the vicinity of other employees hand sawing asbestos cement
sheets for 1 hour per day for 6 months of each year over 5 years;
The claimant developed mesothelioma alleged to arise from asbestos exposure in breach of the employers’ common law
and statutory duty;
Employer 1 is no longer in existence, its historic EL insurers cannot be identified and it is not sued. The claim proceeds against
Employer 2 only.
Table: Summary of alleged exposure
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HOW TO DETERMINE LIABILITY?
There are 10 key questions that need to be answered to determine the issue of liability in our case example:
1. To what type of asbestos fibres was the claimant exposed?
2. What industry ‘control limits’ of exposure applied?
3. What was the claimant’s dose of exposure to asbestos?
4. How did the claimant’s exposure compare to the industry control limits?
5. Was the claimant’s exposure considered to be ‘safe’ in the context of these control limits or was the exposure excessive so
as to be considered in breach of common law?
6. Did any statutory duty apply in respect of the claimant’s employment / exposure?
7. Did any applicable statutory duty simply ‘mirror’ any co-existing common law duty of care or did it impose a higher standard
and duty of care?
8. Was employer 2 in breach of any statutory duty?
9. Did any exposure in breach of duty materially contribute to the risk of injury or was it so trivial as to be considered de minimis?
10. Can the diagnosis of mesothelioma be accepted?
We now consider each of these questions in turn.
1. To what type of asbestos fibres was the claimant exposed?
All 3 main types of asbestos fibres (crocidolite: blue, amosite: brown and chrysotile: white) were used in asbestos containing materials
(ACMs) in the 20th century.
With the same ACM the asbestos fibre composition often changed over time. So for example up to 1969 all 3 types of asbestos were used
in the manufacture of asbestos cement - although chrysotile was the main fibre type used. From 1970 crocidolite was no longer used in
its manufacture - it was predominantly chrysotile and to a far lesser extent amosite.
In our example the claimant was exposed with Employer 2 to asbestos cement during 1971-1975.
There are a number of key industry publications and guidance notes available to determine the type of asbestos fibre(s) to which the
claimant may have been exposed dependent on (i) the ACM, and (ii) the period of exposure.
Using sources such as Asbestos Safety & Control booklet, Asbestos Information Committee, June 1970, Asbestos Materials in Buildings,
Department of the Environment, 1986 and EH36 Work with Asbestos Cement, HSE (1984) we can determine that asbestos cement sheets
in the 1970s typically contained 10-15% white (chrysotile) asbestos [although brown asbestos (amosite) was also used to a far lesser
extent].
2. What industry ‘control limits’ of exposure applied?
The recommended exposure limits for employees under various guidance documents and legislation have been based on continuous 8
hour or 4 hour or 10 minute exposure periods. These limits have existed since 1960 and have been variously called ‘Threshold Limit Values’,
‘Hygiene Standards’, ‘Control Limits’ and ‘Exposure Limits’. As knowledge of the risks associated with asbestos have developed over time
so have the exposure limits fallen.
The guidance limits between 1960 and 1990 are shown in the table below. Note that prior to 1970 the different asbestos fibre types were
not distinguished and the same 8 hour time weighted average applied to all asbestos types. As knowledge developed regarding the
greater risks of harm associated with the blue and brown forms of asbestos - particularly with the emergence of knowledge of risks of
mesothelioma from even modest exposures – so these had lower exposure limits imposed compared to white asbestos.
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Table: Summary of Occupational Hygiene Standards and Limits
In our example the claimant was exposed with Employer 2 to asbestos cement during 1971-1975. The figure below depicts the gradually
reducing hygiene standards contained in the relevant industry guidance between 1970 and 1984.
Figure: Hygiene standards for asbestos between 1970 and 1984
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3. What was the claimant’s dose of exposure to asbestos?
There are a number of considerations in determining the claimant’s daily dose of exposure to asbestos.
i. What task(s) caused the exposure and how were these tasks being performed?
ii. What is the likely asbestos dust concentration arising from the task(s) generating the exposure?
iii. Who gave rise to the exposure-the claimant or others?
iv. What was the claimant’s proximity to the exposure?
v. What was the overall duration of exposure over the course of the working day?
Using sources such as Probable asbestos dust concentrations at construction processes, Technical Data Note 42, Department of
Employment 1973 & 1976 and Probable asbestos dust concentrations at construction processes, Guidance Note EH35, HSE, 1985 and
1989 the probable dust concentration from hand sawing asbestos cement sheets was between 2-4 fibres/ml. In our worked example we
select and apply the top of this range - so 4 fibres/ml.
The claimant was standing c.20ft away from the cutting of the sheets. The above guidance states that the dust concentration can be
reduced to a 1/10th to reflect exposure of others standing at this distance from the sawing. Therefore the assumed dust concentration for
the claimant was 0.4 fibres/ml.
The exposure was for 1 hour per day every other day.
The daily exposure dose to asbestos is calculated using the formula:
At the material time of exposure a worker’s exposure dose was typically assessed as a 4 hour time weighted average (4hr TWA).
The claimant’s average exposure over 4 hours was therefore:
[0.4 fibres/ml x1/4]=0.1 fibres/ml
4. How did the claimant’s exposure compare to these control limits?
For the claimant’s period of alleged exposure to chrysotile fibres between 1971-1975 industry guidance as to ‘safe’ exposure was found
within publication Technical Data Note 13 issued by the Department of Employment to accompany the Asbestos Regulations 1969. The
control limit for chrysotile was 2 fibres/ ml averaged over 4 hours (time weighted average or TWA).
5. Was the claimant’s exposure considered to be ‘safe’ in the context of these control limits or was the exposure excessive so as to be
considered in breach of common law?
The claimant’s estimated exposure dose averaged over 4 hours was 0.1 fibres/ml - a 20th of the 2 fibres / ml control limit. Below is a
comparison of the claimant’s 0.1 fibres/ml exposure (blue line) with the 2 fibres/ml control limit for chrysotile (red line).
PAGE | 35
We considered in more detail, in edition 175 of BC Disease News, whether exposure limits contained within industry guidance post 1970,
can be considered ‘safe’ limits so that any exposure below those limits cannot result in a breach of duty on the part of the employer. The
timeline below provides an overview of the approach taken in the cases to date.
As the relevant control limit for our example is contained within TDN13, we can see from the timeline that the claimant’s exposure would
very likely be considered ‘safe’ such that any unprotected exposure would not give rise to any common law duty of care upon the insured.
6. Did any statutory duty apply in respect of the claimant’s employment / exposure?
Based upon (i) the period of alleged exposure, (ii) the industry in which alleged exposure arose, and (iii) how exposure arose, we can
determine which statutory regulations are likely to apply and whether these ‘mirror’ co-existing common law standards and duties of care
(i.e. are no more onerous), or whether stricter standards and duties exist under legislation.
In our example the following legislation and statutory duties are likely to apply:
PAGE | 36
7. Did any applicable statutory duty ‘mirror’ any co-existing common law duty of care or did it impose a higher standard and duty of
care?
We discussed this in greater detail in editions 178 and 179 of BC Disease News in which we concluded that the applicable statutory duties
simply mirrored any co-existing common law duty of care. Notions of foreseeability are relevant to both consideration of common law
and statutory breach.
If the claim fails at common law it also fails under any statutory duty.
8. Was the employer 2 in breach of any statutory duty?
No - see above at 6 and 7.
9. Did any exposure in breach of duty materially contribute to the risk of injury or was it so trivial as to be considered de minimis?
Under the special rule of law for mesothelioma, an individual will have demonstrated a causal link where the defendant has, in breach
of duty, been responsible for exposing the individual to a significant quantity of asbestos dust and thus materially increased the risk of the
individual contracting mesothelioma. Moreover, if there are multiple exposures by multiple defendants they will each be held jointly and
severally liable for causing the disease.
The individual must be exposed to more than a trivial amount of asbestos and it must increase the risk of contracting mesothelioma by
more than a trivial amount. This requires the individual to actually prove, on the balance of probabilities, that they were exposed to a
material amount of asbestos from a certain source which materially increased their risk of contracting the disease. It is also not enough
to simply point to the only possible source of exposure and say it must have caused the mesothelioma.
In some cases, exposure with an individual employer/occupier may be of a type and so small in the context overall occupational / lifetime
exposure as to be considered insignificant and not materially contributing to risk of injury. In such cases the exposure may fall within de
minimis principles.
To help determine this issue the courts must look at the type of asbestos exposure and also relative doses of exposure. In terms of the type
of asbestos exposure, exposures to chrysotile will be less dangerous than exposure to crocidolite which is thought to have a 200 times
greater causative potency in the development of mesothelioma.
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An individual’s cumulative exposure to asbestos with employers and over a lifetime can be expressed in terms of fibre/ml years-the formula
and its application in our example is shown in the box below:
10. Can the diagnosis of mesothelioma be accepted?
In the vast majority of cases the diagnosis of mesothelioma can be accepted. Sometimes however a firm diagnosis of mesothelioma
within lifetime can be difficult to make.
A Claimant may have undergone biopsy either by needle or endoscope to obtain tissue samples to test for diagnosis. A common symptom
of mesothelioma is the Claimant presenting with fluid effusion and samples of the drained liquid can also be tested.
Often medical records and hospital records will provide an immunohistochemistry profile following the testing of tissue or fluid samples.
Immunochemistry is a branch of chemistry that involves the study of the molecular mechanisms underlying the function of the immune
system. The immunohistochemistry profiling is used to distinguish between different types of cancer based on which proteins are present
and in what quantity. There are a number of common proteins present within mesothelioma which may provide for an alternative diagnosis
and in some cases, further assessment by a medical expert would be recommended.
CONCLUSION
To help determine these liability issues BC Legal has launched its unique asbestos claims handling tool - ABC Asbestos.
ABC Asbestos allows you to quickly and easily determine:
PAGE | 38
the type(s) of asbestos fibres giving rise to alleged exposure;
‘daily exposure dose’ to asbestos;
the industry guidance ‘control limits’ relevant to the time of exposure which may dictate ‘safe’ levels of exposure;
what common law and / or statutory duties apply to the employer / occupier;
whether there is a potential breach defence;
whether there is a de minimis defence;
whether a diagnosis of mesothelioma is valid;
whether the ‘medical causation threshold’ of exposure has been reached in a lung cancer and asbestosis claims.
Where potential defences are identified ABC Asbestos will generate detailed and bespoke letters of repudiation fully referenced with
supporting industry guidance and literature and case law.
The tool also includes:
- an easy to use library of over 400 key documents including case law, legislation, medical literature, industry publications
and guidance and occupational hygiene reports.
- our other asbestos claims handling apps such as the Mesothelioma PLSA damages calculator, and our Apportionment
Calculator.
You can register or log into ABC Asbestos here. If you are interested in training on this unique asbestos system please contact Boris Cetnik.
PAGE | 39
Breach of Duty in Pleural Thickening Claim: McGowan (deceased) v AMEC
Buildings Limited
INTRODUCTION
This month, BC Legal has been successful in defending a claim for pleural thickening in the High Court case of McGowan (deceased) v
AMEC Buildings Limited, based on a failure of the claimant to prove, on the balance of probabilities, that the deceased had been
exposed to negligent levels of asbestos during his employment with the defendant.
The purpose of this feature is to explain the decision and how it may be used in practice, alongside a review of how our tool, ABC Asbestos,
can be utilised in claims such as this.
FACTS
The claim was brought by the widow of the deceased, Mr McGowan, who died in January 2013 of an unrelated cardiac arrest. The
claimant alleged that the deceased, a bricklayer, working in the erection of structures comprising reinforced concrete blocks, developed
pleural thickening as a result of occupational exposure to asbestos between 1949 and 1973 whilst employed by the defendant.
The claim was pursued in both negligence of common law and breach of the statutory duties set out in the provisions of the Building
(Health, Safety and Welfare) Regulations 1948, the Construction (General Provisions) Regulations 1961 and the Construction (Working
Places) Regulations 1966.
The claim was originally one for asbestosis, however, on the basis of both the parties’ medical evidence, it was agreed the deceased
had suffered from idiopathic pulmonary fibrosis of unknown cause, rather than asbestosis and by trial the claim was for bilateral diffuse
pleural thickening and folded lung which the medical experts likely attributed to asbestos exposure whether occupational, domestic or
environmental. However, the experts agreed that there was a lack of evidence to establish where or when the deceased was exposed to
asbestos, to what levels, and whether these fell within the limits that were perceived at the relevant time of exposure to be safe.
Both parties instructed histopathologists, who carried out tests on samples of the deceased’s lung taken after death. It was agreed that
this showed no evidence of asbestosis with only one asbestos body discovered on seven sections of lung. Further, electron microscopic
mineral fibre analysis detected no asbestos in what was described as a ‘well-sampled’ lung.
The claimant submitted that this absence could be due to fibres degrading or being cleared from the lungs over time. However, the
defendant, submitted that even taking into account the passage of time, one would have expected more fibres to have been present in
the lungs if the deceased had occupational levels of asbestos exposure. On this issue, Mrs Justice Andrews found that absence of fibres
detected in the lung tissue after death, which occurred 40 years after the deceased ceased working for the defendant, did not undermine
the thesis that the cause of the bilateral diffuse pleural thickening could have been exposure to significant levels of asbestos, either at
work or somewhere else.
Instead she phrased the key issue for the court as follows:
‘…to determine …whether Mr McGowan was exposed to concentrations of asbestos dust that would have been
foreseeable as causative of harm by the standards of the day, during the course of his employment with the
defendant’.
In relation to this point she went on to say that:
‘If the levels of asbestos to which an employee was exposed were not contemporaneously recognised as hazardous,
then the employer cannot be found in breach of duty because personal injury in such circumstances would not be
foreseeable’.
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Andrews J confirmed that the approach to foreseeability is that established in the leading judgment in Williams v The University of
Birmingham [2011] EWCA Civ 1242, i.e. level of exposure would be deemed as recognisably hazardous if they exceeded the limits
specified in the available guidance at the time.
[Importantly, Andrews J pointed out that the concept of foreseeability is imported into the statutory obligations the claimant relied upon
and as such there is no material distinction to be drawn between the different causes of action in terms of what the claimant must prove
in order to establish liability – as per Abraham v Ireson & Son (Properties) Limited [2009] EWHC 1958 (QB).]
The focus of this case was on the period between 1966-1973 and as such the argument was concentrated on whether the deceased was
exposed to levels of asbestos dust that were higher than those that were perceived to be safe during this period-which from 1970 were
the hygiene levels imported via the Asbestos Regulations 1969 and the 1970 Department of Employment and Productivity Technical Data
Note 13.
The experts were unable to put forward any medical or other literature that suggests what the level of exposure would have to be to cause
pleural plaques and whether this would exceed those considered to be safe. Although the ‘Helsinki criteria’ for diagnosis and attribution
of asbestos-related diseases was relied upon by the claimant, which states:
‘For diffuse pleural thickening, high exposure levels may be required. Bilateral diffuse plate pleural thickening is often
associated with moderate or heavy exposure as seen in cases of asbestosis and should be considered accordingly
in terms of attribution – i.e. this type of pleural thickening is considered to be close to asbestosis in terms of exposure’.
The claimant argued therefore that based on the deceased’s medical condition he must have been exposed to levels exceeding the
recognised hygiene levels from 1966 onwards. The defendant countered this by reiterating that the sample of the lungs had shown no
asbestos fibres of asbestos.
Interestingly, the HSE mesothelioma occupation statistics for male and female deaths aged 16-74 in Great Britain in the period from 2002-
2010 were relied upon by the defendant in order to show that male bricklayers and masons have a lower proportional mortality ratio for
mesothelioma than the average mortality rate for mesothelioma across all male occupations. Andrews J said that this use of mesothelioma
as the calibrator was appropriate, because levels of exposure and the incidence of mesothelioma are closely correlated so that:
‘…if Mr McGowan had been working only as a bricklayer, the statistical evidence suggests that the background
levels of exposure to asbestos fibres in the construction environment would not have been sufficient to render his
employers in breach of duty. Likewise, the statistical evidence in relation to steelworkers does not show a higher
proportional mortality rate’.
Despite the fact that the deceased did not only work as a bricklayer and when looking at similar statistics for the construction industry this
showed that deaths from mesothelioma were higher than average, Andrews J still held that it would be dangerous to seek to draw any
adverse conclusions from the fact that somebody was working on a building site at the relevant time.
Eventually, the lack of a witness statement from the deceased proved fatal to this claim as it was concluded that:
‘At the end of the day, unfortunately for the claimant, the claim falls at the very first hurdle because it is impossible
on the evidence for the court to determine what level of exposure, if any, to asbestos fibres Mr McGowan was
exposed to during the period with which this case is concerned. It seems plain to me, on the balance of probabilities,
that the diffuse pleural thickening was due to some form of exposure to asbestos, but there is no evidence as to when
that happened, what level of exposure there was or over what period he was exposed to it. One cannot draw an
adverse inference against the defendant simply because Mr McGowan spent a very lengthy period working for the
defendant. There is no evidence that he was exposed to asbestos in childhood but, equally, there is no evidence
that he was not. Similarly, there is no evidence that he was not exposed to asbestos when he was working as a clerk
of works after he ceased working for the defendant’.
DISCUSSION
The Judgment does not yet have a neutral citation number, but will soon be reported on Lawtel and Westlaw and will likely be subject to
the same scrutiny that any Judgment in asbestos litigation is subject to.
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While only a first instance decision and not binding on any lower Court, these decisions do provide road maps and a judicial rationale
for subsequent decisions. You only need to look at Paragraph 2 of Mrs Justice Andrews Judgment in McGowan, as mentioned above, to
see that she followed the exact same rationale of Mrs Justice Swift in Abraham v Ireson & Son (Properties) Limited [2009] EWHC 1958 (QB),
another first instance decision, in relation to the concept of foreseeability being imported into the various Construction Regulations.
The case adds to the asbestos jurisprudence in some areas, fails to deal with controversial areas of law in others, but does provide helpful
passages that we believe will be quoted at ‘show cause’ hearings and Trials going forward. The Judgment also deals with the first foray
into the evidential weight to be placed on mortality data for the trade of a Claimant and whether any inference as to the level of exposure
can be drawn.
AREAS OF INTEREST
The following areas are identified as areas where the case will have an impact and they will be addressed in turn in this feature:
1. Further confirmation from the High Court that the Building & Construction Regulations do not add to common law duties.
2. Another case in which a Claimant failed to prove exposure to asbestos/breach of duty.
3. Useful passages on the evidence required to prove breach of duty that correspond to the analysis provided by BC Legal Breach
of Duty Tool.
4. The conflict between Cherry Tree and Williams v University of Birmingham [2011] EWCA Civ 1242 and post 1965 exposure to
asbestos.
5. The use of mortality data for various trades to bolster or undermine allegations of significant exposure to asbestos.
6. The dosage threshold for pleural thickening.
BUILDING (HEALTH, SAFETY AND WELFARE) REGULATIONS 1948, CONSTRUCTION (GENERAL PROVISIONS) REGULATIONS 1961 AND
CONSTRUCTION (WORKING PLACES) REGULATIONS 1966 ADD NOTHING TO THE COMMON LAW
The interpretation of the above Regulations is of crucial importance as many asbestos claims involve the Construction Sector in the
1960’s—mid 1990’s.
The position taken in McGowan was that the words ‘likely to be injurious’ within the Building and Construction Regulations import an element
of foreseeability and that an employer must have known the exposure to C was capable of being ‘injurious’. This wording is also found in
s.63(1) of the Factories Act 1961 which imposes a duty on a factory occupier to protect against exposure to dust. Crucially, however under
the second limb of section 63(1) there is also a duty to protect against exposure to ‘substantial dust of any kind’, which arguably involves
no element of foreseeability. However, this second limb does not appear in the Construction Regulations and thus we are left being able
to argue that the statutory provisions simply mirror the co-existing common law duty of care and what is foreseeable is to be judged by
the relevant standards of the day.
At Paragraph 2 Andrews J endorses the interpretation of Swift J in Abraham v Ireson & Sons (Properties) Limited [2009] 1958 (QB):
There is now another hurdle in the way of a Claimant aiming to argue a stricter interpretation of the Building and Construction Regulations
and another High Court Judge is less likely to find an alternative interpretation, where it would mean departing from two previous decisions
of the High Court. The case presents a further evidential hurdle for those trying to make that argument and is enough to avoid Judgment
at a ‘show cause’ hearing, where such a point is taken.
ANOTHER CASE WHERE THE CLAIMANT HAS FAILED TO ESTABLISH EXPOSURE / BREACH OF DUTY
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Claimants are currently having a bad run of cases where they are failing to discharge their evidential burden of proof:
• Brett v University of Birmingham [2007] EWCA Civ 88
• Harrington v DECC [2008] EWHC 2658 (QB)
• Pugh v Joseph Parkes [2008] EWHC 2964 (QB)
• Abraham v Ireson [2009] EWHC 1958
• Reynolds v DECC [2010] EWHC 1191 (QB)
• Asmussen v Filtrona [2011] EWHC 1734 (QB)
• Williams v University of Birmingham [2011] EWCA Civ 1242
• McGregor v Genco [2014] EWHC 137
• Atkinson v DECC [2014] EWHC 3773 (QB)
• McCarthy v M & S [2014] 3183 QB
• Woodward v DECC [2015] EWHC 3604 (QB)
• Prescott v University of St Andrews[2016] CSOH 3
• Sloper v Lloyds Bank [2016] EWHC 483 (QB)
• Smith v Portswood House [2016] EWHC 939 (QB)
• McGowan (Deceased) v AMEC (2017)
McGowan will be added to that list and when viewed as a whole it can be seen how important the quality of evidence as to exposure is
to the success of a claim.
In many cases that evidence will be lost forever, upon the death of the Deceased.
FINDINGS ON EXPOSURE - ‘THE FIRST HURDLE’
Andrews J was unable to make findings of negligent exposure to asbestos or findings of exposure to asbestos at all.
Crucially she gave Judgment on what evidence was missing that meant she could not make key findings of fact:
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The key evidence missing was:
1. Evidence as to frequency of exposure.
2. Evidence as to level of exposure.
3. Distance from exposure if asbestos usage is by others.
We feel the ‘falls at the very first hurdle’ will be a much used quote where the evidence is poor or incomplete by ‘show cause’ hearing or
trial.
CHERRY TREE v WILLIAMS
Exposure post 1970 is clearly governed by Williams and the guidance given to employer within TDN13.
The guidance within TDN13 allows an employer to weight an exposure over a 4 hour period, so long as the peak exposure does not
exceed prescribed levels over a 10 minute weighted period. What was the position prior to 1970? The Ministry of Labour produced
guidance to employers based on an 8 hour time weighted period, that did not deal with shorter term peak exposures. That guidance was
contained within the various ‘Toxic Substances in Factory Atmospheres / Dust and Fumes in Factory Atmospheres’ 1960, 1966 and 1968.
Those documents deal only with 8 hour time weighting and relatively high short term peak exposures would fall below such levels when
averaged over an 8 hour period. One question is whether short term exposures, that may be high, but with an average below the guidance
to industry when weighted, can give rise to negligence at common law?
Given her findings on the absence of evidence of exposure, Andrew J did not have to deal with this. However, she endorsed both
approaches:
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Williams is stated as the ‘leading case’, but account given to the effect of peak exposures. To that end it might be read that Williams and
Cherry Tree are not that inconsistent, as high short term peaks would be caught by the short term levels within TDN 13. This was the thinking
of Bean J in Hill v John Barnsley [2013] EWHC 520 (QB):
In Hill exposure was up to 99 fibre/ml, so very high in 1968/69 and its negligence was obvious. The key question remains unanswered
where the peak exposures are much lower than this.
USE OF MORTALITY DATA IN ASBESTOS CASES
McGowan is the first time HSE mortality data has been used to prove factual exposure, or the absence of it.
The Claimant’s case was based on inference that an employee working in the Construction Sector would likely have been exposed to
significant quantities of exposure, by the very nature of the job.
Mr McGowan was actually a steel erector and his job was compared to that of a brick layer, which based on HSE data, carried a
statistically low risk of mesothelioma. As such the HSE data assisted the defendant’s argument:
PAGE | 45
For Mr McGowan the data rebutted the presumption, as the risk to his profession was low at 85.6-106 mortality ratio.
Claimants may use this data in weak cases to bolster the poor evidence left.
However, general data on risk cannot prove specific exposure and the burden will always be on the Claimant to prove what he did, how
he did it and the nature and extent of his exposure. All the data can show is that others working with the same job title were exposed and
have a higher risk of mortality. It cannot prove where the Claimant would fall within that data set. A Claimant cannot use generic
epidemiology to prove specific exposures or causation. This falls fowl of the general principle that the general does not prove the specific.
In Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, Lord Rodger discussed this problem as follows:
‘The example in question can be traced, via the speech of Lord Mackay of Clashfern in Hotson , at p 789, to the
dissenting judgment of Brachtenbach J in Herskovits v Group Health Cooperative of Puget Sound (1983) 664 P 2d 474
a decision of the Supreme Court of Washington:
“Brachtenbach J dissented. He warned against the danger of using statistics as a basis on which
to prove proximate cause and indicated that it was necessary at the minimum to produce
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evidence connecting the statistics to the facts of the case. He gave an interesting illustration of
a town in which there were only two cab companies, one with three blue cabs and the other
with one yellow cab. If a person was knocked down by a cab whose colour had not been
observed it would be wrong to suggest that there was a 75% chance that the victim was run
down by a blue cab and that accordingly it was more probable than not that the cab that ran
him down was blue and therefore that the company running the blue cabs would be responsible
for negligence in the running down. He pointed out that before any inference that it was a blue
cab would be appropriate further facts would be required as, for example, that a blue cab had
been seen in the immediate vicinity at the time of the accident or that a blue cab had been
found with a large dent in the very part of the cab which had struck the victim”’.
However, the data may be useful for raising the spectre of exposure elsewhere not considered by a Claimant. Judges like to be able to
identify a possible cause other than the Defendant, if they are going to find against a Claimant. It always assists a Defendant to be able
to point to another potential cause. In this case McGowan worked as a Clerk of Works with other Defendants and at 143, this carried a
higher mortality risk due to mesothelioma than either of his trades with AMEC:
This point was not lost on Andrews J:
The data may well assist the construction of a competing narrative on exposure and a Judge who feels the mesothelioma might have
been caused by another unpursued entity may have more reason to find for the Defendant in front of them.
We may see more use of this data and it is obvious from an analysis of it, that those in the Construction sector were exposed to asbestos
on a regular basis. The generic cannot prove the specific and that remains the Claimant’s evidential burden.
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THE DOSAGE THRESHOLD FOR PLEURAL THICKENING UNDER HELSINKI 2014?
Andrews J gives possible authority for a much higher than expected dosage threshold for diffuse pleural thickening:
Her summary of Helsinki criteria confirms diffuse pleural thickening needs ‘high exposure’ levels and that bilateral diffuse plate pleural
thickening is often associated with ‘moderate to heavy exposure’ akin to the type seen in asbestosis.
This did not accord with the medical evidence in this case or what we would consider to be established thinking. Quantum was agreed
in advance of Trial and no oral evidence was heard from the Chest Physicians and no submissions made on Helsinki, beyond the
requirement within the Joint Report that the pleural thickening would be attributable to asbestos exposure, if the Helsinki criteria for that
are met. The defendant proceeded on the basis of the exposure needing to be higher than that for pleural plaques, but that no one knew
how high, and the Claimant could not prove the extent of the deceased’s exposure.
Andrews J gave Judgment that exposure akin to asbestosis levels was required to establish diffuse pleural thickening, but the 2014 Helsinki
paper actually indicates that, for low grade asbestosis, lower exposure levels (than 25 fibre/ml years) may establish causation:
PAGE | 48
This is the first time a Court has referred to the updated Helsinki criteria.
CONCLUSIONS
The Judgment is helpful on a number of levels, but these are summarised as follows:
1. Further confirmation of the various Building and Construction Regulations adding nothing to the common law.
2. Claims will face significant hurdles where the evidence of exposure is poor, or just not concluded. There are several passages
on what evidence is required to find against a Defendant that will help a Defendant ‘show cause’.
3. ‘Falls at the first hurdle’ which be a much used quote at show cause hearings and trial.
4. We may see more use of mortality data which is not generally favourable in respect of the Construction Industry. However, the
general findings cannot assist a Court with the specific findings required to establish liability.
5. The Court appears to accept that pleural thickening requires a higher levels of exposure than previously thought.
PAGE | 49
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PAGE | 55
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an update on issues that may be of interest to those
handling occupational disease claims. Specialist
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